Santorelli Bldrs., LLC v. 146 Norris Realty, LLC

Opinion

Santorelli Bldrs., LLC v 146 Norris Realty, LLC

2026 NY Slip Op 05334

September 16, 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.

Santorelli Builders, LLC, respondent,

v

146 Norris Realty, LLC, appellant, et al., defendants.

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

Decided on September 16, 2026

2025-09949, (Index No. 606306/24)

Betsy Barros, J.P.

Lara J. Genovesi

Helen Voutsinas

Carl J. Landicino, JJ.

McAuliffe Law, PLLC, East Hampton, NY (E. Timonthy McAuliffe, Jr., of counsel), for appellant.

Matthews, Kirst, Cooley & Choron, PLLC, East Hampton, NY (Brian E. Matthews of counsel), for respondent.

[*1]

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the defendant 146 Norris Realty, LLC, appeals from an order of the Supreme Court, Suffolk County (Alison J. Napolitano, J.), dated August 4, 2025. The order (1) granted the plaintiff's motion pursuant to CPLR 5015(a)(1) to vacate a judgment of the same court entered May 8, 2025, which, upon an oral decision of the same court rendered January 22, 2025, granting the oral application of the defendant 146 Norris Realty, LLC, pursuant to 22 NYCRR 202.27(b) to dismiss the complaint insofar as asserted against it upon the plaintiff's failure to appear at a scheduled conference and for leave to enter a default judgment on that defendant's counterclaims, is in favor of that defendant and against the plaintiff in the total sum of $199,420.92, and, in effect, dismissed the complaint insofar as asserted against that defendant, and (2) denied that defendant's motion pursuant to CPLR 6514(a) to cancel the notice of pendency and pursuant to CPLR 6514(c) for an award of costs and expenses.

ORDERED that the order is affirmed, with costs.

In March 2024, the plaintiff commenced this action against, among others, the defendant 146 Norris Realty, LLC (hereinafter Norris), inter alia, to recover damages for breach of a construction contract. The plaintiff filed a notice of pendency against the subject property. Norris interposed an answer asserting counterclaims, and the plaintiff filed a verified reply to the counterclaims.

In an order dated October 16, 2024 (hereinafter the October 2024 order), the Supreme Court granted the motion of the plaintiff's former attorney for leave to withdraw as counsel and directed the parties to appear at a conference on January 22, 2025. The record reflects that the plaintiff's former attorney served the October 2024 order upon the plaintiff by regular mail to the home address of one of the plaintiff's principals, Angelo Santorelli.

On January 22, 2025, the plaintiff failed to appear at the conference. In an oral decision, the Supreme Court granted Norris's oral application pursuant to 22 NYCRR 202.27(b) to dismiss the complaint insofar as asserted against it upon the plaintiff's failure to appear at the conference and for leave to enter a default judgment on its counterclaims. On May 8, 2025, a [*2]judgment was entered in favor of Norris and against the plaintiff in the total sum of $199,420.92, and, in effect, dismissing the complaint insofar as asserted against Norris. On May 13, 2025, Norris moved pursuant to CPLR 6514(a) to cancel the notice of pendency and pursuant to CPLR 6514(c) for an award of costs and expenses.

Meanwhile, the plaintiff retained new counsel and moved in June 2025 pursuant to CPLR 5015(a)(1) to vacate the judgment. In an order dated August 4, 2025, the Supreme Court granted the plaintiff's motion and denied Norris' motion. Norris appeals.

Under 22 NYCRR 202.27(b), "if all parties do not appear and proceed at any scheduled call of a calendar or at any conference, the court may note the default on the record, and, where the defendant appears but the plaintiff does not, dismiss the action" (Beneficial Homeowner Serv. Corp. v Horan, 230 AD3d 1210, 1210; see U.S. Bank N.A. v Roberts, 216 AD3d 1038, 1040). "If the plaintiff appears but the defendant does not, the judge may grant judgment by default or order an inquest" (22 NYCRR 202.27[a]).

"In order to vacate a default in appearing at a scheduled court conference, a party must demonstrate both a reasonable excuse for the default and a potentially meritorious defense or cause of action" (Advanced Remodeling of Long Is., Inc. v Monahan, 175 AD3d 1361, 1362; see Beach 28 RE, LLC v Somra, 216 AD3d 610, 611). However, "in the absence of actual notice of a conference or hearing date, a party could not have been in default for failing to appear at that conference or hearing" (Bank of N.Y. Mellon v Ortiz, 238 AD3d 696, 697; see Notaro v Performance Team, 161 AD3d 1093, 1095). "In that situation, the party's default is considered a nullity, and vacatur of the default is 'required as a matter of law and due process, and no showing of a potentially meritorious [cause of action or] defense is required'" (Bank of N.Y. Mellon v Ortiz, 238 AD3d at 697, quoting Bonik v Tarrabocchia, 78 AD3d 630, 632).

Here, the plaintiff submitted, among other things, an affidavit of Santorelli who denied receiving the October 2024 order and asserted that he was unaware of the January 22, 2025 conference. It is apparent from the record that the only notice of the January 22, 2025 conference sent to the plaintiff was sent to Santorelli's home address by regular mail, without any indication that the notice was sent in care of Santorelli, which created a discrepancy in the name of the addressee (see generally D.A.D. Rest. v Anthony Operating Corp., 139 AD2d 485), and notice was not sent to any other principal of the plaintiff. Accordingly, the plaintiff's denial of receipt of notice was not conclusory.

In the absence of notice, there could be no default and no basis for entry of a default judgment.

In any event, "[a] motion to vacate a default is addressed to the sound discretion of the court" (Vujanic v Petrovic, 103 AD3d 791, 792). Assuming there was a default, it was a single default early in the proceedings, there was no showing of prejudice and no evidence that the plaintiff intended to abandon the action, and the delay between entry of the judgment and the motion to vacate the judgment was brief (see P & H Painting, Inc. v Flintlock Constr. Servs., LLC, 179 AD3d 1086, 1087).

In view of the foregoing, we affirm the order appealed from.

BARROS, J.P., GENOVESI, VOUTSINAS and LANDICINO, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court