Chevalier v. 368 E. 148th Street Associates, LLC

80 A.D.3d 411, 914 N.Y.S.2d 130

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 4, 2011
• Status: Published

Opinions

Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered January 29, 2010, which, upon granting third-party plaintiff Notias Construction’s motion to renew, vacated so much of a prior order dismissing its third-party claims for common-law indemnification and contribution against third-party defendant Triboro Plumbing & Heating, and denied Triboro’s cross motion for summary judgment dismissing those third-party claims, affirmed, without costs.

Based on the totality of the circumstances, the motion court did not abuse its discretion in vacating its order dismissing the third-party complaint brought by third-party plaintiff Notias against third-party defendant Triboro. The relevant procedural history of the action is as follows: Plaintiff, a nonparty to this appeal, alleges that in May 2006 she slipped and fell on a road covered with mud that came from a nearby construction site. She brought this action against, among others, Notias, the general contractor for the construction project.

In September 2008, Notias commenced a third-party action against Triboro, a subcontractor. By notice dated February 19, 2009, defendant 368 East 148th Street Associates, LLC (368), also a nonparty to this appeal, moved for summary judgment dismissing the complaint and all cross claims against it. By notice dated March 24, 2009, Triboro moved, by cross motion to the 368 motion, for summary judgment dismissing Notias’s third-party complaint as against Triboro.

* Notias defaulted in opposing the cross motion, and as a result by order entered June 9, 2009, the motion court granted Triboro summary judgment on default and dismissed the third-party complaint.

By notice dated June 10, 2009, Notias moved, among other things, for vacatur of the June 9 order. In an affirmation in support, Notias’s then-counsel stated that the default was unintentional and offered the following explanation: in February 2009, counsel received Triboro’s “Notice of Cross-Motion,” which made the cross motion returnable April 10, 2009. At that time, 368’s summary judgment motion was pending; originally the motion was returnable March 25, 2009, but it had been adjourned to April 14, 2009, apparently without Notias’s consent. Notias’s counsel indicated that he “believed that the [cross motion] had not been accepted by the court” because it was “returnable on Good Friday, and [the ‘e-law’ website] did not indicate that the [cross motion] was pending before the Court.” As a result, counsel stated, he “expected to receive an Amended [cross motion] with a new return date, at which time this office intended to oppose the [cross motion].”

By decision and order dated July 13, 2009, Supreme Court denied the motion to vacate on the ground that the papers were procedurally defective, but granted leave to renew on proper papers. Although the Court noted that Notias had been lax, it stated that it would be willing to entertain the motion to vacate because Notias did not intend to default and “such matters as are raised in these applications are better resolved on the merits.”

In October 2009, Notias moved by newly-retained counsel for leave to renew its motion for vacatur. In January 2010, the court granted renewal, and upon renewal vacated its dismissal and reinstated Notias’s third-party claims “pursuant to the [long]-standing policy of the Courts to favor adjudication of the merits over default dismissals, and pursuant to an adequate showing herein that there are issues of fact to be resolved at trial as to Triboro’s possible responsibility for the injuries sustained by plaintiff.”

An application to vacate an order of default may be granted if the movant shows that the default was excusable and that the defense to the action is meritorious (38 Holding Corp. v City of New York, 179 AD2d 486, 487 [1992]). It is within the court’s sound discretion to determine whether the movant’s excuse for the default is sufficient (id.; see also Chelli v Kelly Group, P.C., 63 AD3d 632, 633 [2009] [court abused its discretion in denying motion to vacate where defendants’ failure to appear “was purely the result of inadvertent law office failure” by their attorneys]; SS Constantine & Helen’s Romanian Orthodox Church of Am. v Z. Zindel, Inc., 44 AD3d 744, 745 [2007] [court providently exercised its discretion in determining that excuse was reasonable, where counsel’s failure to oppose summary judgment motion was isolated and unintentional with no evidence of willful neglect]). The determination whether a reasonable excuse has been offered is sui generis and should be based on all relevant factors, among which are the length of the delay chargeable to the movant, whether the opposing party has been prejudiced, whether the default was willful, and the strong public policy favoring the resolution of cases on the merits (Harcztark v Drive Variety, Inc., 21 AD3d 876, 876-877 [2005]).

The excuses that Notias’s prior counsel gave are sufficient because any law office failure was inadvertent. Further, the short delay caused by the default, the lack of prejudice to Triboro, the public policy concerns, and Notias’s retention of new counsel, also militate in favor of vacating the default.

We find that granting permission to resubmit the motion upon proper papers was also a proper exercise of discretion, and that upon granting renewal, the court properly reinstated the third-party claims for common-law indemnification and contribution as against Triboro (see CPLR 2221 [e]).

Finally, as to the merits of the defense, an issue of fact exists as to whether any negligence by Triboro contributed to the accident, and whether Notias could itself be found negligent. As a result, the motion court properly denied Triboro’s cross motion to dismiss the indemnification and contribution claims (see Gallagher v Levien & Co., 72 AD3d 407, 409 [2010]; Hanley v McClier Corp., 63 AD3d 453, 455 [2009]). Concur — Tom, J.P., Acosta, Renwick and Freedman, JJ.

Although not raised by the parties, the validity of Triboro’s cross motion is questionable because it was untimely pursuant to CPLR 2215, which requires a cross movant to serve papers “[a]t least three days prior to the time at which the motion is noticed to be heard,” if not earlier under CPLR 2214 (b). Triboro’s papers, which were dated March 24, were not served by March 22 as required by statute.