| Pursoo v Ngala-El |
| 2011 NY Slip Op 07827 [89 AD3d 712] |
| November 1, 2011 |
| Appellate Division, Second Department |
| Teresa Pursoo, Appellant, v Yasmin Ngala-El, AlsoKnown as Yasmin Ngala, et al., Defendants, and Buccarri Ngala, Also Known as BukhariNgala-El, et al., Respondents. |
—[*1] Law Office of Christopher L. Grayson, P.C., Garden City, N.Y., for respondent PatriciaNgala, also known as Patricia Felton Ngala.
In an action, inter alia, to recover damages for fraud and unjust enrichment, the plaintiffappeals from an order of the Supreme Court, Nassau County (Marber, J.), entered August 19,2010, which denied her motion for leave to enter judgment against the defendants BuccarriNgala, also known as Bukhari Ngala-El, and Patricia Ngala, also known as Patricia Felton Ngala,on the issue of liability, upon their defaults in appearing or answering, and granted the crossmotion of the defendant Patricia Ngala, also known as Patricia Felton Ngala, in effect, to vacateher default in appearing and answering and to extend her time to answer.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the plaintiff's motion which was for leave to enter judgment against the defendantBuccarri Ngala, also known as Bukhari Ngala-El, on the issue of liability upon his default inappearing and answering, and substituting therefor a provision granting that branch of themotion; as so modified, the order is affirmed, with one bill of costs to the plaintiff, payable by thedefendant Buccarri Ngala, also known as Bukhari Ngala-El, and one bill of costs to the defendantPatricia Ngala, also known as Patricia Felton Ngala, payable by the plaintiff.
A defendant seeking to vacate a default under CPLR 5015 (a) (1) must demonstrate both areasonable excuse for the default in appearing or answering the complaint and a potentiallymeritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co.,67 NY2d 138, 141 [1986]; Gray v B. R. Trucking Co., 59 NY2d 649, 650 [1983]; Kouzios v Dery, 57 AD3d 949,949 [2008]). The evidence submitted by the defendant Patricia Ngala, also known as PatriciaFelton Ngala (hereinafter Patricia), in opposition to the plaintiff's motion and in support of hercross motion, including her prior attorney's detailed explanation for his neglect, was sufficient todemonstrate a reasonable excuse for her default in answering the complaint (see CPLR2005; Stridiron v Jacob's Ladder Realty,L.L.C., 33 AD3d 320, 320-321 [2006]; Gironda v Katzen, 19 AD3d 644, 645 [2005]; Uddaraju v City of New York, 1 AD3d140, 141 [2003]). Furthermore, the record demonstrated that Patricia has a potentiallymeritorious defense to the action. Accordingly, the Supreme Court did not improvidentlyexercise its discretion in denying that branch of the plaintiff's motion which was for leave toenter a default [*2]judgment against Patricia and in grantingPatricia's cross motion, in effect, to vacate her default and to extend her time to serve an answer.
In support of that branch of her motion which was for leave to enter a default judgmentagainst the defendant Buccarri Ngala, also known as Bukhari Ngala-El (hereinafter Buccarri), theplaintiff submitted her process server's affidavit averring that Buccarri had been served with acopy of the summons and complaint, and also submitted a factually detailed verified complaintand an affirmation from her attorney regarding Buccarri's default in appearing and answering(see CPLR 3215 [f]; Woodson v Mendon Leasing Corp., 100 NY2d 62 [2003]),and there was nothing in the record to indicate that Buccarri made a timely appearance oranswered the complaint (see Okeke vEwool, 66 AD3d 978, 979 [2009]). Accordingly, that branch of the plaintiff's motionwhich was for leave to enter judgment against Buccarri, upon his default in appearing oranswering, should have been granted (see Church of S. India Malayalam Congregation of Greater N.Y. v BryantInstallations, Inc., 85 AD3d 706, 707 [2011]; Okeke v Ewool, 66 AD3d at 979;Levine v Forgotson's Cent. Auto &Elec., Inc., 41 AD3d 552, 553 [2007]). Dillon, J.P., Dickerson, Leventhal, Austin andMiller, JJ., concur.