| Crandall v Wright Wisner Distrib. Corp. |
| 2009 NY Slip Op 00907 [59 AD3d 1059] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| Erik Crandall, Respondent, v Wright Wisner Distributing Corp. etal., Defendants, and Claude G. Wright, Individually and Doing Business as Wright Real EstatePartnership, et al., Appellants. |
—[*1] Croucher, Jones and Johns, Canandaigua (David A. Johns of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Monroe County (David Michael Barry, J.),entered September 7, 2007 in a personal injury action. The order, inter alia, denied the motion ofdefendant Wright Real Estate, L.L.C. to vacate a default judgment and extend its time to answer.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs, the motion is granted, the judgment entered August 9, 2006 is vacated, defendantWright Real Estate, L.L.C. is granted 20 days from service of the order of this Court with noticeof entry to serve and file an answer, and the cross motion is dismissed.
Memorandum: Plaintiff commenced this Labor Law and common-law negligence actionseeking damages for injuries he allegedly sustained while working at a construction site.Defendant Wright Real Estate, L.L.C. (LLC) failed to answer the complaint, and Supreme Court(Egan, J.) granted plaintiff's motion seeking a default judgment against the LLC. We agree withthe LLC and defendants Claude G. Wright and Claude H. Wright, doing business as Wright RealEstate Partnership (Partnership), that Supreme Court (Barry, J.) erred in denying the motion ofthe LLC to vacate the default judgment and extend the LLC's time to answer. "A defendantseeking to vacate a default under [CPLR 5015 (a)] must demonstrate a reasonable excuse for itsdelay in appearing and answering the complaint and a meritorious defense to the action"(Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). Here, afterthe Partnership, as owner, entered into the contracts for the construction project, the Partnershipconverted into the LLC pursuant to Limited Liability Company Law § 1006. The LLCsubmitted evidence that the insurance carrier for the Partnership retained counsel to defend thePartnership but not the LLC, and that the insurance carrier and counsel were unaware of theconversion and the carrier's duty to defend the LLC prior to the entry of the default [*2]judgment. We conclude that the LLC thus demonstrated areasonable excuse for the LLC's default (see Dodge v Commander, 18 AD3d 943, 945 [2005]; Hayes vMaher & Son, 303 AD2d 1018 [2003]) and, in addition, that the LLC has a meritoriousdefense to the action. "Given the brief overall delay, the promptness with which [the LLC]moved to vacate the judgment, the lack of any intention on [the LLC's] part to abandon theaction, plaintiff's failure to demonstrate any prejudice attributable to the delay, and thepreference for resolving disputes on the merits, we conclude that [the LLC's] default inappearing must be excused" (Mayville v Wal-Mart Stores, 273 AD2d 944, 945 [2000]).In view of our decision, we do not address the alternative contention that the answer served bythe Partnership should be deemed to have been served by the LLC. Finally, in view of ourdecision, plaintiff's cross motion for an inquest on damages must be dismissed as moot (see Estate of Witzigman v Drew, 48AD3d 1172 [2008]). Present—Scudder, P.J., Martoche, Smith, Green and Gorski, JJ.