| L & Z Masonry Corp. v Mose |
| 2018 NY Slip Op 08474 [167 AD3d 728] |
| December 12, 2018 |
| Appellate Division, Second Department |
[*1]
| L & Z Masonry Corp., Appellant, v Kiriaki Moseet al., Respondents. |
Cohn & Spector, White Plains, NY (Julius W. Cohn of counsel), for appellant.
Speiser & Heinzmann, White Plains, NY (Joseph C. Heinzmann, Jr., of counsel), forrespondents.
In an action to foreclose a mechanic's lien, the plaintiff appeals from an order of the SupremeCourt, Westchester County (Charles D. Wood, J.), dated January 18, 2018. The order, insofar asappealed from, denied the plaintiff's motion for leave to enter a default judgment against thedefendants upon their failure to appear or answer the complaint, and granted that branch of thedefendants' cross application which was, in effect, to deem their late answer timely served nuncpro tunc.
Ordered that on the Court's own motion, the appeal from so much of the order as granted thatbranch of the defendants' cross application which was, in effect, to deem their late answer timelyserved nunc pro tunc is deemed to be an application for leave to appeal from that portion of theorder, and leave to appeal is granted (see CPLR 5701 [c]); and it is further,
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendants.
On October 21, 2016, the plaintiff filed a mechanic's lien against the defendants' property. OnFebruary 8, 2017, the plaintiff commenced this action to foreclose the mechanic's lien. On March7, 2017, the defendants were served with the summons and complaint pursuant to CPLR 308 (4).By notice of ex parte motion dated October 26, 2017, the plaintiff moved for leave to enter adefault judgment. After the defendants, who proceeded pro se, served their answer on October30, 2017, the plaintiff served the defendants with a copy of the motion dated October 26, 2017.In opposition to the plaintiff's motion, the defendants made an informal cross application datedNovember 3, 2017, inter alia, in effect, to deem their late answer timely served nunc pro tunc.The Supreme Court, among other things, denied the plaintiff's motion for leave to enter a defaultjudgment against the defendants, and granted that branch of the defendants' cross applicationwhich was, in effect, to deem their late answer timely served nunc pro tunc. The plaintiffappeals.
On a motion for leave to enter a default judgment against a defendant based on the [*2]failure to answer or appear, a plaintiff must submit proof of serviceof the summons and complaint, proof of the facts constituting the cause of action, and proof ofthe defendant's default (see CPLR 3215 [f]; Liberty County Mut. v Avenue I Med., P.C., 129 AD3d 783,784-785 [2015]; Atlantic Cas. Ins. Co. vRJNJ Servs., Inc., 89 AD3d 649, 651 [2011]; Triangle Props. #2, LLC v Narang, 73 AD3d 1030, 1032 [2010]).To demonstrate the facts constituting the cause of action, the plaintiff need only submit sufficientproof to enable a court to determine if the cause of action is viable (see Woodson v MendonLeasing Corp., 100 NY2d 62, 70-71 [2003]; Clarke v Liberty Mut. Fire Ins. Co., 150 AD3d 1192, 1194 [2017]).Here, the plaintiff satisfied all of the requirements for demonstrating its entitlement to enter adefault judgment (see Jing Shan Chen vR & K 51 Realty, Inc., 148 AD3d 689, 690 [2017]; Mercury Cas. Co. v Surgical Ctr. atMilburn, LLC, 65 AD3d 1102 [2009]).
To successfully oppose the facially adequate motion for leave to enter a default judgmentbased on their failure to appear or timely serve an answer, the defendants were required todemonstrate a reasonable excuse for their default and the existence of a potentially meritoriousdefense to the action (see Clarke v Liberty Mut. Fire Ins. Co., 150 AD3d at 1195; Gershman v Midtown Moving & Stor.,Inc., 123 AD3d 974, 975 [2014]). Similarly, to have their late answer deemed timelyserved nunc pro tunc, the defendants were required to provide a reasonable excuse for their delayin answering and demonstrate a potentially meritorious defense to the action (see CPLR3012 [d]; Clarke v Liberty Mut. Fire Ins. Co., 150 AD3d at 1195; Mannino Dev., Inc. v Linares, 117AD3d 995, 995 [2014]; Ryan vBreezy Point Coop., Inc., 76 AD3d 523, 524 [2010]).
The defendants presented a reasonable excuse for their default and the subsequent delay inanswering the complaint based upon the illness and death of the mother of the defendantChristopher Scott Mose, the relocation of his elderly father, and the mental health of thedefendants' daughter (see Zaidi v NewYork Bldg. Contrs., Ltd., 61 AD3d 747, 748 [2009]; Du Jour v DeJean, 247AD2d 370, 371 [1998]; Matter of McCaffrey v McCaffrey, 210 AD2d 409 [1994];Matter of State Div. of Human Rights v North Broadway Holding Corp., 38 AD2d 856[1972]). Furthermore, the defendants' verified answer and supporting evidence were sufficient todemonstrate the existence of a potentially meritorious defense to the action (see CPLR105 [u]; Zaidi v New York Bldg. Contrs., Ltd., 61 AD3d at 748; Whitfield v State of New York, 28AD3d 541, 542 [2006]).
Under the circumstances presented here, the Supreme Court providently exercised itsdiscretion in granting that branch of the defendants' cross application which was, in effect, todeem their late answer timely served nunc pro tunc, even in the absence of a formal notice ofcross motion seeking that relief (see Gershman v Midtown Moving & Stor., Inc.,123 AD3d at 976; Fried v JacobHolding, Inc., 110 AD3d 56 [2013]), and in denying the plaintiff's motion for leave toenter a default judgment against the defendants. Leventhal, J.P., Austin, Cohen, Barros andChristopher, JJ., concur.