Opinion
848 CA 21-01254
02-03-2023
STONEWELL BODIES & MACHINE, INC., Plaintiff-Respondent, v. ALL AREA FIRE & RESCUE APPARATUS SALES, LLC, Defendant-Appellant.
JAMES F. MISIANO, P.C., BRENTWOOD (JAMES F. MISIANO OF COUNSEL), FOR DEFENDANT-APPELLANT. THE CROSSMORE LAW OFFICE, ITHACA (MARISSA A. JOHNSON OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
JAMES F. MISIANO, P.C., BRENTWOOD (JAMES F. MISIANO OF COUNSEL), FOR DEFENDANT-APPELLANT.
THE CROSSMORE LAW OFFICE, ITHACA (MARISSA A. JOHNSON OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: SMITH, J.P., LINDLEY, CURRAN, BANNISTER, AND MONTOUR, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff and defendant entered into an agreement relating to the manufacture and purchase of three emergency service vehicles. Plaintiff commenced this action seeking damages for, inter alia, defendant's alleged breach of the agreement. Defendant failed to appear in the action and a default judgment was entered against it. Defendant moved to vacate the default judgment and now appeals from an order that denied its motion. We affirm.
We conclude that Supreme Court did not abuse its discretion in denying defendant's motion. To establish an excusable default under CPLR 2005 and 5015 (a) (1), defendant was required to establish a reasonable excuse for the default as well as a meritorious defense to the action (see Butchello v. Terhaar , 176 A.D.3d 1579, 1580, 110 N.Y.S.3d 471 [4th Dept. 2019] ; Wells Fargo Bank, N.A. v. Dysinger , 149 A.D.3d 1551, 1552, 52 N.Y.S.3d 788 [4th Dept. 2017] ). "In determining whether to vacate an order entered on default, the court should consider relevant factors, such as the extent of the delay, prejudice or lack of prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits" ( Calaci v. Allied Interstate, Inc. , 108 A.D.3d 1127, 1128, 969 N.Y.S.2d 348 [4th Dept. 2013] [internal quotation marks omitted]). The decision to grant or deny a motion to vacate a default judgment lies within the sound discretion of the court (see Vogt v. Eberhardt , 163 A.D.3d 1514, 1515, 81 N.Y.S.3d 844 [4th Dept. 2018], lv dismissed 32 N.Y.3d 1091, 90 N.Y.S.3d 638, 114 N.E.3d 1091 [2018] ).
Here, defendant asserted on the motion to vacate the default that the failure to appear in the action was due to law office failure. "[W]hile CPLR 2005 allows courts to excuse a default due to law office failure, it was not the Legislature's intent to routinely excuse such defaults, and mere neglect will not be accepted as a reasonable excuse" ( Wilmington Sav. Fund Socy., FSB v. Rodriguez , 197 A.D.3d 784, 786, 150 N.Y.S.3d 600 [2d Dept. 2021] ). In support of its motion, defendant submitted the affirmation of its attorney who stated that an answer was not filed due to hardships related to the COVID-19 pandemic and in light of Executive Order [A. Cuomo] 202.8 ( 9 NYCRR 8.202.8 ) (Executive Order 202.8), issued in response to the pandemic, which affected court filings and in-person workforce. However, even assuming arguendo that Executive Order 202.8 tolled a defendant's time to answer (cf. generally Matter of Maziarz v. Western Regional Off-Track Betting Corp. , 207 A.D.3d 1065, 1065-1066, 169 N.Y.S.3d 563 [4th Dept. 2022] ; Little v. Steelcase, Inc. , 206 A.D.3d 1597, 1599-1600, 170 N.Y.S.3d 422 [4th Dept. 2022] ), it has no relevance to the delay here because it was not issued until after the deadline for appearing in the action had passed. Further, defendant's attorney submitted only vague claims that hardships related to the pandemic resulted in defendant's not being able to appear in the action before the deadline (see generally Brehm v. Patton , 55 A.D.3d 1362, 1363, 864 N.Y.S.2d 226 [4th Dept. 2008] ). We thus conclude that defendant presented insufficient evidence of the events surrounding the default and failed to establish a reasonable excuse for the default based on law office failure (see generally id. ).
In light of that conclusion, we need not consider whether defendant established a potentially meritorious defense (see City of Utica v. Mallette , 200 A.D.3d 1614, 1616-1617, 159 N.Y.S.3d 288 [4th Dept. 2021] ; Butchello , 176 A.D.3d at 1581, 110 N.Y.S.3d 471 ). We have reviewed defendant's remaining contention and conclude that it does not warrant modification or reversal of the order.