Cross v. Lee

Opinion

Cross v Lee

2026 NY Slip Op 04924

August 12, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Tyrone Cross, etc., respondent,

v

April Lee, et al., appellants, et al., defendant.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 12, 2026

2024-12389, (Index No. 618381/23)

Betsy Barros, J.P.

Valerie Brathwaite Nelson

Barry E. Warhit

Elena Goldberg Velazquez, JJ.

Cartier, Bernstein, Auerbach & Steinberg, P.C., Patchogue, NY (Linda Marie Boswell and Kenneth A. Auerbach of counsel), for appellant April Lee.

Kaiteris & Kavanagh, PLLC, Bayport, NY (Peter C. Kaiteris of counsel), for appellant Anastazia Lee.

Barket Epstein Kearon Aldea & Loturco, LLP, Garden City, NY (Donna Aldea and Alexander Klein of counsel), for respondent.

[*1]

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants April Lee and Anastazia Lee separately appeal from an order of the Supreme Court, Suffolk County (Robert F. Quinlan, J.), dated October 2, 2024. The order denied the separate motions of those defendants pursuant to CPLR 5015(a)(1) to vacate a prior order of the same court dated March 27, 2024, granting the plaintiff's unopposed motion for leave to enter a default judgment against those defendants.

ORDERED that the order dated October 2, 2024, is reversed, on the law and in the exercise of discretion, with one bill of costs, the separate motions of the defendants April Lee and Anastazia Lee pursuant to CPLR 5015(a)(1) to vacate the order dated March 27, 2024, are granted, the order dated March 27, 2024, is vacated, and those defendants' time to serve an answer is extended until 30 days after service upon them of a copy of this decision and order.

On July 26, 2023, the plaintiff commenced this action on behalf of his infant daughter (hereinafter the infant) to recover damages for personal injuries the infant allegedly sustained on a property located in Brookhaven, owned and occupied by the infant's grandmother, the defendant April Lee (hereinafter the grandmother), and occupied by the infant's mother, the defendant Anastazia Lee (hereinafter the mother, and together with the grandmother, the defendants), as well as the infant's three siblings. The defendants failed to appear or interpose an answer. The plaintiff thereafter made a motion to be appointed the infant's guardian ad litem, which the Supreme Court granted without opposition from the defendants. In an order dated March 27, 2024, the court granted the plaintiff's unopposed motion for leave to enter a default judgment against the defendants and set a date for an inquest as to damages (hereinafter the March 2024 order).

On September 5, 2024, the defendants separately moved pursuant to CPLR 5015(a)(1) to vacate the March 2024 order. In an order dated October 2, 2024, the Supreme Court denied the defendants' separate motions. The defendants separately appeal.

"A defendant seeking to vacate a default in answering or appearing pursuant to CPLR 5015(a)(1) must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action" (Wilmington Sav. Fund Socy., FSB v Rodriguez, 197 AD3d 784, 785; see Wells Fargo Bank, N.A. v Eliacin, 206 AD3d 950, 951). "The court has discretion to accept law office failure as a reasonable excuse (see CPLR 2005) where the claim is supported by a detailed and credible explanation of the default," but "[c]onclusory and unsubstantiated allegations of law office failure are not sufficient" (U.S. Bank, N.A. v Imtiaz, 198 AD3d 1005, 1007 [internal quotation marks omitted]; see Wells Fargo Bank, N.A. v Eliacin, 206 AD3d at 952; Wilmington Sav. Fund Socy., FSB v Rodriguez, 197 AD3d at 786). Moreover, "mere neglect is not a reasonable excuse" (Bank of Am., N.A. v Murjani, 199 AD3d 630, 631 [internal quotation marks omitted]; see U.S. Bank, N.A. v Imtiaz, 198 AD3d 1007).

Here, the defendants claimed that, upon receiving notice of the action in August 2023, they each contacted their family attorney, with whom the grandmother and the family had an 18-year relationship, and who was representing the mother in a child support proceeding against the plaintiff. The family attorney agreed to handle this matter. In a series of text messages to the defendants, the family attorney gave the impression that he was handling the matter and again indicated that such was the case when he met the defendants in person in reference to the child support proceeding. On or about April 16, 2024, the defendants received notice of the March 2024 order. At that juncture, the family attorney notified them that he had a "plan and [a] timeline." In May 2024, the defendants notified the family attorney that they had to retain another attorney because the family attorney had allowed a default judgment to be entered.

During these proceedings, the defendants were caring for the infant, who had suffered a brain injury and had been in the intensive care unit for approximately two months and required machines to help her breathe. The infant's care involved hyberbaric and stem cell treatments from doctors in Louisiana and Arizona and fundraising to pay for her care.

The defendants each hired their current attorneys and promptly moved to vacate the March 2024 order, alleging that the defendants' reliance upon the representations of the family attorney constituted a reasonable excuse for their default and further alleging, as an affirmative defense, that the swimming pool in which the infant nearly drowned was surrounded by a fence that complied with the Town Code of the Town of Brookhaven.

Contrary to the plaintiff's contention, under the particular circumstances of this case, the defendants' conduct in relying upon the representations of the family attorney did not constitute willful default or neglect (see Muir v Coleman, 98 AD3d 569; Belisi v Gifford, 269 AD2d 552). Further, the defendants' responsibilities in caring for the infant provided a reasonable explanation for their failure to be more proactive in their dealings with the family attorney and in the management of this action (see Fine v Fine, 12 AD3d 399; see generally Matter of Davis v Incorporated Vil. of Laurel Hollow, 195 AD3d 1019; Matter of Heredia v New York City Health & Hosps. Corp., 159 AD3d 663).

Accordingly, the Supreme Court's denial of the defendants' separate motions pursuant to CPLR 5015(a)(1) to vacate the March 2024 order was an improvident exercise of discretion.

BARROS, J.P., BRATHWAITE NELSON, WARHIT and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court