Marks v. Nail & Spa 72, Inc.

• Citation: 2022 NY Slip Op 33278 (U)
• Decision Date: 29 September 2022
• Docket Number: Index No. 153667/2021,Motion Seq. No. 002
• Parties: MICHELLE MARKS, Plaintiff, v. NAIL & SPA 72, INC.,1012 LEXINGTON AVENUE CO. LLC, and HUBB NYC PROPERTY MANAGEMENT LLC, Defendants.
• Court: United States State Supreme Court (New York)

2022 NY Slip Op 33278(U)

MICHELLE MARKS, Plaintiff,
v.
NAIL & SPA 72, INC.,1012 LEXINGTON AVENUE CO. LLC, and HUBB NYC PROPERTY MANAGEMENT LLC, Defendants.

Index No. 153667/2021, Motion Seq. No. 002

Supreme Court, New York County

September 29, 2022

Unpublished Opinion

PRESENT: HON. DAVID B. COHEN, Justice

DECISION + ORDER ON MOTION

DAVID B. COHEN, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 002) 30, 31, 32, 33, 34, 36, 37, 38 were read on this motion to/for VACATE - DECISION/ORDER/JUDGMENT/AWARD.

In this premises liability action, defendant Nail & Spa 72, Inc. ("Nail & Spa") moves, pursuant to CPLR 317 and 5015(a)(1), to vacate this Court's prior order granting a default judgment against it and, pursuant to CPLR 3012(d), to compel plaintiff to accept a late answer. Plaintiff opposes the motion. After consideration of the parties' contentions, as well as a review of the relevant statutes and case law, the motion is decided as follows.

Factual and Procedural Background

Plaintiff commenced this action in April 2021 after she was allegedly injured when she slipped and fell inside Nail & Spa's place of business (Doc No. 1 at 10). In November 2021, after Nail & Spa failed to answer or otherwise appear in this action, plaintiff moved for a default judgment against it (Doc No. 12). By order entered January 27, 2022, this Court granted plaintiffs motion for a default judgment against Nail & Spa (Doc No. 21).

Nail & Spa now moves, pursuant to CPLR 317 and 5015(a)(1), for an order vacating the default judgment against it and, pursuant to CPLR 3012(d), to compel plaintiff to accept a late

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answer (Doc Nos. 30-31, 38). In support of the motion, Nail & Spa argues, among other things, that it has a reasonable excuse for its delay in responding to the complaint, i.e., inaction by its insurance carrier caused its attorney to receive the case file for the first time in late February 2022, almost a month after the default judgment was granted (Doc No. 31 at 4-5; Doc No. 38 at 2-4).^[1] It further argues that it has a meritorious defense because it did not create, nor had prior notice of, any alleged wet spot (Doc No. 31 at 5-6; Doc No. 38 at 4-5). Last, it argues that plaintiff must be compelled to accept a late answer from Nail & Spa because it has a reasonable excuse for failing to respond to the complaint and a meritorious defense to plaintiffs claims, accepting a late answer would not prejudice plaintiff, and public policy favors resolving cases on the merits (Doc No. 31 at 6-8). Plaintiff opposes the motion, contending that CPLR 317 is inapplicable and that Nail & Spa's contention that it has a reasonable excuse for the delay and a meritorious defense to the claims is conclusory (Doc No. 36).

Legal Conclusions

Nail & Spa's Request to Vacate the Default Judgment Pursuant to CPLR 5015(a)

"A party seeking to vacate a judgment entered upon default under CPLR 5015(a)(1) must show a reasonable excuse for the default as well as a potentially meritorious defense" (Perez v Table Run Estates, Inc., 191 A.D.3d 416, 416 [1st Dept 2021] [citations omitted]; accord Soffer v Montanez, 198 A.D.3d 606, 606 [1st Dept 2021]). However, "[a] determination of the sufficiency of the proffered excuse and the statement of merits rests within the sound discretion of the court" (Marquez v 171 Tenants Corp., 161 A.D.3d 646, 647 [1st Dept 2018];

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see Rivera v Shypri Realty Corp., 198 A.D.3d 448, 448 [1st Dept 2021]). Although an insurer's failure to timely appoint counsel to appear in an action on behalf of a defendant may be considered a reasonable excuse for a delay (see Schwartz v Port Imperial Ferry Corp., 197 A.D.3d 1057, 1057 [1st Dept 2021]; Gecaj v Gjonaj Realty & Mgt. Corp., 149 A.D.3d 600, 604 [1st Dept 2017]; Triangle Tramp., Inc. v Markel Ins. Co., 18 A.D.3d 229, 229 [1st Dept 2005] [finding reasonable excuse established when defaulting party provided "evidence, in admissible form" that insurance carrier responsible for delay]), "vacatur of a default judgment is not warranted merely because the default was occasioned by lapses on the part of an insurance carrier" (Sanchez v Avuben Realty LLC, 78 A.D.3d 589, 590 [1st Dept 2010]; see Klein v Actors & Directors Lab, 95 A.D.2d 757, 758 [1st Dept 1983], Iv dismissed 60 N.Y.2d 1015 [1983]; Lemberger v Congregation Yetev Lev D 'Satmar, Inc., 33 A.D.3d 671, 672 [2d Dept 2006]). A defendant in default due to an insurer's inaction or delay must still provide sufficient details or facts regarding the delay or inaction (see Lemberger, 33 A.D.3d at 672 [finding no reasonable excuse where insurance carrier alleged that months-long delay in assigning counsel caused by error in case management system]; Gecaj, 149 A.D.3d at 604 [finding no reasonable excuse where defaulting party alleged that it believed insurance carrier already handling matter]).

Here, Nail & Spa fails to set forth any factual allegations to support its assertion that its delay in responding to plaintiffs complaint was caused by the inaction of its insurance carrier. It has not provided any affidavits, from the insurance carrier or otherwise, to substantiate the instant delay (see Lemberger, 33 A.D.3d at 672). Its only attempt to establish a reasonable excuse for the delay is a conclusory statement that there was a delay...