Hernandez-Torres v. RJR Realty Assoc., LLC

Opinion

Hernandez-Torres v RJR Realty Assoc., LLC

2026 NY Slip Op 05083

August 26, 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.

Jose Hernandez-Torres, appellant-respondent,

v

RJR Realty Associates, LLC, et al., respondents-appellants.

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

Decided on August 26, 2026

2024-11005, 2025-02037, (Index No. 705487/23)

Angela G. Iannacci, J.P.

Valerie Brathwaite Nelson

Paul Wooten

Janice A. Taylor, JJ.

Tomkiel & Tomkiel, White Plains, NY (Matthew Tomkiel of counsel), for appellant-respondent.

Lester Schwab Katz & Dwyer, LLP, New York, NY (Daniel S. Kotler of counsel), for respondents-appellants.

[*1]

DECISION & ORDER

In an action to recover damages for personal injuries, (1) the plaintiff appeals, and the defendants cross-appeal, from an order of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), entered September 16, 2024, and (2) the plaintiff appeals from an order of the same court entered January 24, 2025. The order entered September 16, 2024, insofar as appealed from, denied that branch of the plaintiff's motion which was for summary judgment on the issue of liability on the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) insofar as asserted against the defendant Cofire Asphalt Corp. without prejudice to renew upon the completion of discovery. The order entered September 16, 2024, insofar as cross-appealed from, granted that branch of the plaintiff's motion which was for leave to enter a default judgment against the defendant RJR Realty Associates, LLC. The order entered January 24, 2025, insofar as appealed from, granted that branch of the motion of the defendant RJR Realty Associates, LLC, which was pursuant to CPLR 5015(a)(1) to vacate so much of the order entered September 16, 2024, as granted that branch of the plaintiff's motion which was for leave to enter a default judgment against that defendant.

ORDERED that the cross-appeal from the order entered September 16, 2024, is dismissed as academic in light of our determination on the appeal from the order entered January 24, 2025; and it is further,

ORDERED that the order entered September 16, 2024, is affirmed insofar as appealed from; and it is further,

ORDERED that the order entered January 24, 2025, is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the defendants.

The plaintiff allegedly was injured on August 3, 2021, while working on a construction project. In March 2023, the plaintiff commenced this action against the defendants, RJR Realty Associates, LLC (hereinafter RJR), and Cofire Asphalt Corp. (hereinafter Cofire), [*2]alleging, inter alia, violations of Labor Law §§ 240(1) and 241(6). Thereafter, the plaintiff moved for leave to enter a default judgment against RJR based upon its failure to appear or answer and for summary judgment on the issue of liability on the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) insofar as asserted against Cofire. In an order entered September 16, 2024, the Supreme Court granted that branch of the plaintiff's motion which was for leave to enter a default judgment against RJR and denied that branch of the plaintiff's motion which was for summary judgment on the issue of liability on the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) insofar as asserted against Cofire without prejudice to renew upon the completion of discovery. The plaintiff appeals, and the defendants cross-appeal, from that order.

Thereafter, RJR moved, among other things, pursuant to CPLR 5015(a)(1) to vacate so much of the order entered September 16, 2024, as granted that branch of the plaintiff's motion which was for leave to enter a default judgment against it. In an order entered January 24, 2025, the Supreme Court, inter alia, granted that branch of RJR's motion. The plaintiff appeals from that order.

"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" (U.S. Bank Trust, N.A. v Gomez, 205 AD3d 839, 840; see Mtag Cust for Mtag Caz Cr. NY, LLC v County of Nassau, 191 AD3d 662, 663-664). "'Whether there is a reasonable excuse for a default is a discretionary, sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits'" (Mtag Cust for Mtag Caz Cr. NY, LLC v County of Nassau, 191 AD3d at 663-664, quoting Harcztark v Drive Variety, Inc., 21 AD3d 876, 876-877). Under the circumstances of this case, including the explanation proffered by RJR that the default was the result of an insurance company delaying tender of RJR's defense, the lack of any prejudice to the plaintiff as a result of the minimal delay beyond the deadline stipulated to by the parties for RJR to file an answer, the lack of willfulness by RJR, the existence of a potentially meritorious defense, and the strong public policy favoring the resolution of cases on the merits, the Supreme Court providently exercised its discretion in granting that branch of RJR's motion which was to vacate so much of the order entered September 16, 2024, as granted that branch of the plaintiff's motion which was for leave to enter a default judgment against it (see Natanel v Plaza Ins. Co., 200 AD3d 890, 891; Velez v Mr. Demolition, Inc., 172 AD3d 1140, 1141-1142).

"A party should be afforded a reasonable opportunity to conduct discovery prior to the determination of a motion for summary judgment" (Salameh v Yarkovski, 156 AD3d 659, 660; see Rutherford v Brooklyn Navy Yard Dev. Corp., 174 AD3d 932, 933). A motion for summary judgment may be denied as premature where "some evidentiary basis is offered to suggest that discovery may lead to relevant evidence" (Mangiarcina v Ridgewood 69, LLC, 248 AD3d 774, 776 [internal quotation marks omitted]). "A party opposing summary judgment is entitled to obtain further discovery when it appears that facts supporting the opposing party's position may exist but cannot then be stated" (Brea v Salvatore, 130 AD3d 956, 956; see CPLR 3212[f]; Salameh v Yarkovski, 156 AD3d at 660). "This is especially so where the motion for summary judgment was made prior to the parties conducting depositions" (Schlichting v Elliquence Realty, LLC, 116 AD3d 689, 690).

Here, the plaintiff moved for summary judgment before written discovery was exchanged and before any depositions were taken. Moreover, the defendants demonstrated that the branch of the plaintiff's motion which was for summary judgment on the issue of liability on the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) insofar as asserted against Cofire was premature, as discovery may lead to relevant evidence necessary to oppose that branch of the motion (see Magistro v New York City Hous. Auth., 235 AD3d 733, 736; Kharyshyn v West End 82, LLC, 232 AD3d 723, 724). Accordingly, the Supreme Court properly denied that branch of the plaintiff's motion which was for summary judgment on the issue of liability on the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) insofar as asserted against Cofire without prejudice to renew upon the completion of discovery.

IANNACCI, J.P., BRATHWAITE NELSON, WOOTEN and TAYLOR, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court