Gately v. Drummond, 2016–00258

• Decision Date: 16 May 2018
• Docket Number: Index No. 6899/13,2016–00258
• Citation: 77 N.Y.S.3d 519,161 A.D.3d 947
• Parties: Theresa A. GATELY, plaintiff, v. Thomas DRUMMOND, appellant.
• Court: New York Supreme Court — Appellate Division

161 A.D.3d 947
77 N.Y.S.3d 519

Theresa A. GATELY, plaintiff,
v.
Thomas DRUMMOND, appellant.

2016–00258
Index No. 6899/13

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

Decided on May 16, 2018

Reisman, Rubeo, McClure & Altman, LLP, Hawthorne, N.Y. (Mark I. Reisman and Sharman T. Propp of counsel), for appellant.

MARK C. DILLON, J.P., ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, LINDA CHRISTOPHER, JJ.

77 N.Y.S.3d 520

DECISION & ORDER

In an action to recover damages for breach of contract and unjust enrichment, the defendant appeals from an order of the Supreme Court, Dutchess County (Maria G. Rosa, J.), dated November 18, 2015. The order, insofar as appealed from, denied those branches of the defendant's motion which were pursuant to CPLR 5015(a)(1) to vacate a judgment of the same court dated October 31, 2014, entered upon his failure to appear at a hearing and an inquest, and pursuant to CPLR 3025(b) for leave to serve an amended answer.

ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof denying that branch of the defendant's motion which was pursuant to CPLR 5015(a)(1) to vacate the judgment dated October 31, 2014, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff commenced this action, by summons with notice dated November 21, 2013, against the defendant, her son, to recover damages for breach of contract and unjust enrichment. The plaintiff alleged that in approximately 2005, she loaned the defendant $250,000 to purchase a home (hereinafter the subject property), which the defendant then purchased. The plaintiff further alleged that as part of the loan agreement, she would be permitted to reside at the subject property, and the defendant agreed to repay the loan when the plaintiff decided that she no longer wished to reside there.

The defendant retained an attorney to represent him in this action. The attorney was a longtime friend of the defendant and his wife. The attorney's wife had represented the defendant and his wife when they purchased the subject property.

After the complaint, dated January 16, 2014, was filed, the plaintiff moved for leave to enter a default judgment on the ground that the defendant had failed to serve a timely answer. The defendant opposed the motion and submitted an answer and an affidavit of service to demonstrate that the answer had been timely served. In an order dated March 31, 2014, the Supreme Court denied the plaintiff's motion.

The plaintiff thereafter moved for leave to renew her motion for leave to enter a default judgment on the ground that the defendant's opposition papers had not been timely served. The Supreme Court, in effect, reserved decision on the plaintiff's motion for leave to renew and directed the parties to appear for a hearing on July 10, 2014, to determine whether the answer had been timely served.

The defendant failed to appear at the hearing. The Supreme Court found the defendant to be in default and scheduled an inquest on the issue of damages. The defendant failed to appear at the inquest, which was held on...