| Vinny Petulla Contr. Corp. v Ranieri |
| 2012 NY Slip Op 02483 [94 AD3d 751] |
| April 3, 2012 |
| Appellate Division, Second Department |
| Vinny Petulla Contracting Corp., Respondent, v LewisRanieri, Defendant, and Lunz Development Corp. et al., Appellants. |
—[*1] Reisman Peirez Reisman & Capobianco, LLP, Garden City, N.Y. (Joseph Capobianco andGabrielle R. Schaich of counsel), for respondent.
In an action, inter alia, to recover damages for breach of contract and on an account stated,the defendants Lunz Development Corp. and Joseph Lunz appeal from an order of the SupremeCourt, Nassau County (Mahon, J.), dated May 26, 2011, which denied their motion, in effect,pursuant to CPLR 5015 (a) (4) to vacate a judgment of the same court dated March 8, 2011,entered upon their default in appearing or answering, pursuant to CPLR 5015 (a) (1) to vacatetheir default in appearing or answering, and, in effect, pursuant to CPLR 2004 and 3012 (d) forleave to serve and file a late answer.
Ordered that the order is reversed, on the facts and in the exercise of discretion, with costs,and the motion of the defendants Lunz Development Corp. and Joseph Lunz, in effect, pursuantto CPLR 5015 (a) (4) to vacate the judgment dated March 8, 2011, pursuant to 5015 (a) (1) tovacate their default in appearing or answering, and, in effect, pursuant to CPLR 2004 and 3012(d) for leave to serve and file a late answer is granted.
The Nassau County Clerk did not have the authority to enter a judgment against the appellantpursuant to CPLR 3215 (a), since, under the circumstances of this case, the damages soughtagainst the appellants were not for a "sum certain" and could not be determined without extrinsicproof (see Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568, 572-573[1978]; Stephan B. Gleich & Assoc. vGritsipis, 87 AD3d 216, 222-224 [2011]; Pikulin v Mikshakov, 258 AD2d 450,451 [1999]; Hotel Syracuse, Inc. v Brainard, 256 App Div 1055 [1939]). In light of theforegoing, the Supreme Court should have granted that branch of the appellants' motion whichwas, in effect, pursuant to CPLR 5015 (a) (4) to vacate a judgment dated March 8, 2011, whichwas entered upon their default in appearing or answering.
Moreover, in light of the lack of any prejudice to the plaintiff resulting from the short delayby the appellants in appearing in this action, the existence of a potentially meritorious defense tothe action, and the public policy favoring the resolution of cases on the merits, the appellants'[*2]default in appearing and answering should have been excused(see CPLR 2004, 3012 [d]; Zeccola & Selinger, LLC v Horowitz, 88 AD3d 992, 993 [2011];Feder v Eline Capital Corp., 80AD3d 554, 555 [2011]; Schonfeld vBlue & White Food Prods. Corp., 29 AD3d 673, 674 [2006]; Yonkers Rib House, Inc. v 1789 Cent. ParkCorp., 19 AD3d 687, 688 [2005]). Accordingly, those branches of the appellants' motionwhich were pursuant to CPLR 5015 (a) (1) to vacate their default in appearing and answeringand, in effect, pursuant to CPLR 2004 and 3012 (d) for leave to serve and file a late answershould have been granted. Angiolillo, J.P., Florio, Leventhal and Lott, JJ., concur.