Holley v. Universal Contr. & Consulting Group, Inc.

Opinion

Holley v Universal Contr. & Consulting Group, Inc.

2026 NY Slip Op 05085

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.

Thomas Holley, etc., appellant,

v

Universal Contracting & Consulting Group, Inc., et al., respondents.

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

Decided on August 26, 2026

2023-09198, (Index No. 152/13)

Betsy Barros, J.P.

Helen Voutsinas

Donna-Marie E. Golia

Phillip Hom, JJ.

Springs Law Firm PLLC, New York, NY (Venus Springs of counsel), for appellant.

Law Office of Suzanne M. Saia, LLC, Rye Brook, NY, for respondents.

[*1]

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Kings County (Joy F. Campanelli, J.), dated August 9, 2023. The order, insofar as appealed from, denied the plaintiff's motion pursuant to CPLR 5015(a)(1) to vacate (1) an order of the same court dated June 7, 2023, referring the defendants' unopposed motion to direct a remote deposition to the Central Compliance Part and marking off the calendar the plaintiff's cross-motion for leave to enter a default judgment and pursuant to 22 NYCRR 130-1.1 to impose sanctions against the defendants, and (2) an order of the same court (Rachel E. Freier, J.) dated July 12, 2023, granting the defendants' unopposed motion to direct a remote deposition.

ORDERED that the order dated August 9, 2023, is reversed insofar as appealed from, on the law and in the exercise of discretion, with costs, the plaintiff's motion pursuant to CPLR 5015(a)(1) to vacate the orders dated June 7, 2023, and July 12, 2023, is granted, and the matter is remitted to the Supreme Court, Kings County, for a new determination of the defendants' motion to direct a remote deposition and a determination of the plaintiff's cross-motion for leave to enter a default judgment and pursuant to 22 NYCRR 130-1.1 to impose sanctions against the defendants.

On January 4, 2013, Thomas Holley (hereinafter the plaintiff) and Katie Liverman (hereinafter the decedent) commenced this action against the defendants, inter alia, to recover damages for breach of contract. During the pendency of the action, the decedent died, and the plaintiff, in his capacity as executor of the decedent's estate, was substituted for her.

On December 29, 2022, the plaintiff moved pursuant to CPLR 3126 to strike the defendants' answer or, in the alternative, to compel the defendants to produce a specific witness for a deposition by a certain date. In a self-executing order dated February 21, 2023, the Supreme Court, among other things, denied that branch of the plaintiff's motion which was to strike the defendants' answer and directed that the defendants' witness be produced for a deposition on or before May 31, 2023, or their answer would be stricken.

On April 17, 2023, the defendants moved to direct that the deposition of their witness be taken by remote electronic means pursuant to Rules of the Commercial Division of the Supreme Court (22 NYCRR 202.70[g]) rule 37 due to underlying health concerns. The defendants argued that [*2]the witness was immunocompromised, would not go to public places, and did not feel safe using public transportation.

On May 31, 2023, the plaintiff cross-moved for leave to enter a default judgment and pursuant to 22 NYCRR 130-1.1 to impose sanctions against the defendants. The plaintiff contended, inter alia, that the February 21, 2023 order was a self-executing conditional order and that the defendants' failure to produce their witness according to its terms rendered that order absolute.

On June 7, 2023, the plaintiff's counsel received an email notification that an order had been uploaded to the New York State Courts Electronic Filing System. The order dated June 7, 2023, referred the defendants' motion to the Central Compliance Part, without opposition, and marked off the calendar the plaintiff's cross-motion. In an order dated July 12, 2023, the Supreme Court granted the defendants' motion "without opposition" and amended the February 21, 2023 order so as to provide that any sanctions for failure to comply with that order were no longer self-executing, but rather, required a further motion.

On August 1, 2023, the plaintiff moved pursuant to CPLR 5015(a)(1) to vacate the orders dated June 7, 2023, and July 12, 2023. In an order dated August 9, 2023, the Supreme Court, among other things, denied the plaintiff's motion. The plaintiff appeals.

"A party seeking to vacate a default in opposing a motion or in appearing at a conference must demonstrate both a reasonable excuse for its default and a potentially meritorious cause of action or defense" (Bank of N.Y. Mellon v Faragalla, 174 AD3d 677, 678). "'[T]he determination of what constitutes a reasonable excuse lies within the sound discretion of the motion court'" (Ross v Emefieh, 227 AD3d 739, 740, quoting Cortazar v Cojam Constr., Inc., 222 AD3d 713, 714). "'In making that discretionary determination, the court should consider relevant factors, such as the extent of the delay, prejudice or lack of prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits'" (Nationstar Mtge., LLC v Persaud, 234 AD3d 982, 983, quoting Bank of N.Y. Mellon v Faragalla, 174 AD3d at 678). "'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'" (Avanza Group, LLC v Investment Mgt. Group, LLC, 237 AD3d 1016, 1016-1017, quoting Deutsche Bank Natl. Trust Co. v Fishbein, 179 AD3d 768, 770).

Here, the plaintiff's submissions, taken together, set forth a detailed and credible explanation for his failure to appear at a calendar call on June 7, 2023 (see e.g. Guilfoyl v Watts, 212 AD3d 785, 787). The plaintiff demonstrated that his counsel's failure to appear at the calendar call was "isolated and unintentional" (Nationstar Mtge., LLC v Mandel, 208 AD3d 668, 669), caused by a failure of the WebCivil system to update the case caption to reflect the death of the decedent and the plaintiff's proceeding as executor of the decedent's estate. This error was beyond counsel's control. There is no evidence in the record that the plaintiff intended to abandon his opposition to the defendants' motion, and the defendants were not prejudiced by the delay (see Ferreira v Singh, 176 AD3d 782, 784). In addition, the plaintiff's submissions demonstrated a potentially meritorious opposition to the defendants' motion (see id.). Accordingly, the Supreme Court improvidently exercised its discretion in denying the plaintiff's motion pursuant to CPLR 5015(a)(1) to vacate the orders dated June 7, 2023, and July 12, 2023 (see Nationstar Mtge., LLC v Mandel, 208 AD3d at 669; Bank of N.Y. Mellon v Faragalla, 174 AD3d at 678).

The defendants' remaining contentions need not be reached in light of our determination.

BARROS, J.P., VOUTSINAS, GOLIA and HOM, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court