| Zeccola & Selinger, LLC v Horowitz |
| 2011 NY Slip Op 07632 [88 AD3d 992] |
| October 25, 2011 |
| Appellate Division, Second Department |
| Zeccola & Selinger, LLC, Appellant, v Harvey Horowitz etal., Respondents. |
—[*1] Arnold W. Blatt, New City, N.Y., for respondents.
In an action to recover legal fees for services rendered, the plaintiff appeals from an order ofthe Supreme Court, Orange County (McGuirk, J.), dated November 8, 2010, which granted thedefendants' motion to vacate a clerk's judgment of the same court dated September 9, 2010,entered upon the defendants' default in appearing or answering, to vacate their default inappearing or answering, and to compel it to accept their answer.
Ordered that the order is affirmed, with costs.
The Orange County Clerk did not have the authority to enter a clerk's judgment against thedefendants under CPLR 3215 (a), as the plaintiff's cause of action was not for a "sum certain"(see Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568, 572 [1978]; Stephan B. Gleich & Assoc. vGritsipis, 87 AD3d 216 [2011]; Ayres Mem. Animal Shelter, Inc. v Montgomery County Socy. forPrevention of Cruelty to Animals, 17 AD3d 904, 904-905 [2005]; Pikulin vMikshakov, 258 AD2d 450, 451 [1999]; Maxwell v First Port Jefferson Corp., 31AD2d 813 [1969]; Geer, Du Bois & Co. v Scott & Sons Co., 25 AD2d 423 [1966]).Accordingly, the Supreme Court properly granted that branch of the defendants' motion whichwas to vacate the clerk's judgment.
Furthermore, the Supreme Court providently exercised its discretion in granting thosebranches of the defendants' motion which were to vacate their default in appearing or answeringand to compel acceptance of their answer (see CPLR 3012 [d]). In light of the lack of anyprejudice to the plaintiff resulting from the minimal delay by the individual defendants, afterappearing, in serving an answer to the complaint, and the short delay by the corporate defendantin appearing and answering the complaint, the lack of willfulness on the part of the defendants,the existence of potentially meritorious defenses, and the public policy favoring the resolution ofcases on the merits, the defendants' default in appearing or answering were properly excused(see CPLR 2004; Zanelli v JMMRaceway, LLC, 83 AD3d 697 [2011]; Feder v Eline Capital Corp., 80 AD3d 554, 555 [2011]; Verde Elec. Corp. v Federal Ins. Co.,50 AD3d 672 [2008]; Stuart vKushner, 39 AD3d 535 [2007]). Skelos, J.P., Angiolillo, Lott and Roman, JJ., concur.