Opinion
No. CV-23-0995
02-22-2024
Michael Sheber, Respondent, v. Ashley Homes LLC et al., Appellants.
David E. Woodin, Catskill, for appellants. Whiteman Osterman & Hanna LLP, Albany (Jennifer Thomas Yetto of counsel), for respondent.
Calendar Date:January 16, 2024
David E. Woodin, Catskill, for appellants.
Whiteman Osterman & Hanna LLP, Albany (Jennifer Thomas Yetto of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Aarons, Reynolds Fitzgerald and McShan, JJ.
McShan, J.
Appeal from an order of the Supreme Court (Adam W. Silverman, J.), entered December 13, 2022 in Greene County, which, among other things, denied defendants' cross-motion to vacate their default.
In December 2020, plaintiff and defendant Ashley Homes Construction Company LLC contracted for defendants to install a modular home on plaintiff's property. According to plaintiff, certain deficiencies in the construction of the home were brought to defendants' attention and were ultimately unaddressed. Thereafter, plaintiff retained counsel and made a prelitigation demand to defendants by a letter on March 4, 2022, identifying various issues with the home and demanding that defendants reimburse him for the costs associated with remediating and repairing the property. Defendants responded to the letter, in essence denying that they were responsible for any deficiencies and asserting that they had fully performed under the contract. Plaintiff responded to this letter on April 11, 2022, advising defendants that he disagreed with their assessment, and that if they did not submit a counteroffer to plaintiff's request for damages within 10 days, plaintiff would commence litigation. Having received no response, plaintiff commenced this action by summons and complaint in June 2022, asserting causes of action for breach of contract, breach of warranty and breach of warranty of habitability, and served John Hommel, defendants' managing member, that same month. After the time to respond had passed, plaintiff moved for a default judgment in September 2022. In response, defendants cross-moved to vacate their default and for permission to interpose an answer. Supreme Court granted plaintiff's motion and denied defendants' cross-motion, determining that defendants had failed to demonstrate a reasonable excuse for their delay in appearing in the action. Defendants appeal.
We affirm. Initially, defendants contend that Supreme Court erred in the order in which it determined the relief sought on the parties' respective motions, arguing that the court was required to assess its cross-motion to interpose a late answer before determining plaintiff's motion for default. However, regardless of whether the court was addressing defendant's request to file a late answer or deciding whether to grant plaintiff's contested motion for default judgment, defendants were still required to demonstrate a reasonable excuse for their delay (see Pare v Pare, 222 A.D.3d 765, 765 [2d Dept 2023]; Carrington Mtge. Servs., LLC v Fiore, 206 A.D.3d 1306, 1307 [3d Dept 2022]; see Kegelman v Town of Otsego, 203 A.D.3d 82, 85 [3d Dept 2021], lv dismissed 38 N.Y.3d 1124 [2022]). To this end, we find no error in Supreme Court's analysis, as it first determined the threshold issue of reasonable excuse in denying defendants' cross-motion. That determination "is addressed to the court's sound discretion, subject to reversal only where there has been a clear abuse of that discretion" (Matter of CCAP Auto Lease Ltd. v Savannah Car Care, Inc., 211 A.D.3d 1210, 1212-1213 [3d Dept 2022] [internal quotation marks and citations omitted]; see U.S. Bank, N.A. v Clarkson, 187 A.D.3d 1376, 1377 [3d Dept 2020]; Sharestates Inv., LLC v Hercules, 166 A.D.3d 700, 701 [2d Dept 2018]).
To this end, defendants advance various excuses for their delay that, in sum and substance, are predicated on Hommel's lack of legal experience, which led him to physically appear at the courthouse on the date that an answer was due rather than serving a written answer on plaintiff's counsel. However, Hommel's ignorance of his legal obligations based upon his decision to initially proceed pro se, when considered alongside his representation that he had initially deemed the complaint frivolous, does not constitute a reasonable excuse for his delay in answering (see Carrington Mtge. Servs., LLC v Fiore, 206 A.D.3d at 1307; Kelly v Hinkley, 186 A.D.3d 1842, 1843 [3d Dept 2020]; Kranenburg v Butwell, 34 A.D.3d 1005, 1006 [3d Dept 2006]; compare Puchner v Nastke, 91 A.D.3d 1261, 1262 [3d Dept 2012]). Moreover, based upon their undisputed receipt of two separate correspondence from plaintiff's counsel, the second of which Hommel disregarded entirely, defendants were clearly on notice that litigation would be commenced if they failed to respond, and the summons provided a further warning that the failure to answer the complaint could result in a default judgment (see OneWest Bank, FSB v Villafana, 187 A.D.3d 1201, 1202 [2d Dept 2020]; Bank of N.Y. Mellon v Daniels, 180 A.D.3d 738, 739 [2d Dept 2020]; Chase Home Fin., LLC v Minott, 115 A.D.3d 634, 634 [2d Dept 2014]). Under these circumstances, we are satisfied that Supreme Court did not clearly abuse its discretion in determining that defendants lacked a reasonable excuse for defaulting and, accordingly, we need not address whether defendants have established a meritorious defense (see Matter of CCAP Auto Lease Ltd. v Savannah Car Care, Inc., 211 A.D.3d at 1214; Wells Fargo Bank, N.A. v Oppitz, 182 A.D.3d 746, 747 [3d Dept 2020], lv dismissed 35 N.Y.3d 1126 [2020]).
Garry, P.J., Egan Jr., Aarons and Reynolds Fitzgerald, JJ., concur.
ORDERED that the order is affirmed, with costs.