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

• Decision Date: 04 January 2011
• Citation: 914 N.Y.S.2d 130,80 A.D.3d 411
• Court: New York Supreme Court — Appellate Division
• Parties: Leonilda CHEVALIER, Plaintiff, v. 368 E. 148TH STREET ASSOCIATES, LLC, et al., Defendants, Notias Construction Corp., Defendant-Respondent. Notias Construction Corp., Third-Party Plaintiff-Respondent, v. Consolidated Edison Company Of New York, Inc., Third-Party Defendant, Triboro Plumbing & Heating Corp., Third-Party Defendant-Appellant.

914 N.Y.S.2d 130

80 A.D.3d 411

Leonilda CHEVALIER, Plaintiff,

v.368 E. 148TH STREET ASSOCIATES, LLC, et al., Defendants,Notias Construction Corp., Defendant-Respondent.

Notias Construction Corp., Third-Party Plaintiff-Respondent,

v.Consolidated Edison Company Of New York, Inc., Third-Party Defendant,Triboro Plumbing & Heating Corp., Third-Party Defendant-Appellant.

Supreme Court, Appellate Division, First Department, New York.

Jan. 4, 2011.

Gallo Vitucci & Klar, LLP, New York (Yolanda L. Ayala of counsel), for appellant.

Milber Makris Plousadis & Seiden, LLP, White Plains (Peter J. Morris of counsel), for respondent.

TOM, J.P., McGUIRE, ACOSTA, RENWICK, FREEDMAN, JJ.

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. ¹ 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 thatthe default was unintentional and offered the following explanation: in February 2009, counsel received Triboro's "Notice of Cross-Motion," whichmade 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 A.D.2d 486, 487, 578 N.Y.S.2d 174 [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 A.D.3d 632, 633, 883 N.Y.S.2d 26 [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 and Helen's Romanian Orthodox Church of Am. v. Z. Zindel, Inc., 44 A.D.3d 744, 745, 843 N.Y.S.2d 414 [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 delaychargeable 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 A.D.3d 876, 876-877, 800 N.Y.S.2d 613 [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 contributionas 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 A.D.3d 407, 409, 898 N.Y.S.2d 35 [2010]; Hanley v. McClier Corp., 63 A.D.3d 453, 455, 881 N.Y.S.2d 400 [2009] ).

All concur except McGUIRE, J. who dissents in a memorandum as follows:

McGUIRE, J. (dissenting).

I dissent and would reverse the order granting Notias's motion to renew and, upon renewal, vacating a prior order dismissing Notias's third-party complaint against Triboro and denying Triboro's cross motion for summary judgment dismissing the third-party complaint as against it. I would not reach the question of whether a proper basis for renewal was established as Notias did not in any event establish a reasonable excuse for its default.

As Notias defaulted with respect to Triboro's cross motion (another defendant in the main action had moved for summary judgment dismissing the complaint against it) to dismiss Notias' third-party complaint as against it, Supreme Court granted the cross motion and dismissed the third-party complaint against Triboro. Thereafter, in moving, inter alia, to vacate the default, Notias was required to establish both a reasonable excuse for its default and that it had potentially meritorious claims against Triboro ( JP Morgan Chase Bank, N.A. v. Bruno, 57 A.D.3d 362, 869 N.Y.S.2d 451 [2008] ). Apparently, but understandably, the majority is unwilling to go so far as to say that the proffered excuse is reasonable and instead says only that the "excuses [ sic ] ... are sufficient because any law office failure...