Yuxi Li v. Caruso

• Decision Date: 23 May 2018
• Docket Number: 2016–10428,Index No. 8597/15
• Citation: 161 A.D.3d 1132,77 N.Y.S.3d 685
• Parties: YUXI LI, appellant, v. Angelo CARUSO, respondent.
• Court: New York Supreme Court — Appellate Division

161 A.D.3d 1132

77 N.Y.S.3d 685

YUXI LI, appellant,

v.Angelo CARUSO, respondent.

2016–10428

Index No. 8597/15

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

May 23, 2018

Submitted—January 23, 2018

Steven Louros, New York, NY, for appellant.

Patrick Neglia, Garden City, N.Y. (Richard A. Shannon of counsel), for respondent.

MARK C. DILLON, J.P. LEONARD B. AUSTIN ROBERT J. MILLER SYLVIA O. HINDS–RADIX, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Salvatore J. Modica, J.), entered August 24, 2016. The order, insofar as appealed from, denied the plaintiff's motion, inter alia, for leave to enter a default judgment against the defendant on the issue of liability and granted that branch of the defendant's cross motion which was pursuant to CPLR 3012(d) to compel the plaintiff to accept a late answer.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On January 19, 2015, the plaintiff, while operating a vehicle in Jericho, allegedly was injured during a collision between her vehicle and a vehicle owned and operated by the defendant. On July 15, 2015, the plaintiff commenced this action against the defendant to recover damages for personal injuries. On August 5, 2015, the defendant was duly served by delivery of the summons and complaint to his wife at their residence in Oyster Bay, which was followed by a mailing of those documents to the same address on August 6, 2015 (see CPLR 308[2] ). The defendant did not appear or answer the complaint within the 30–day statutory period to do so after completion of service (see CPLR 308[2] ; 320). On November 5, 2015, an additional copy of the summons and complaint was mailed to the defendant at his residence. The defendant interposed a verified answer dated November 30, 2015, which was received by the plaintiff's attorney on December 4, 2015, and rejected, inter alia, as untimely. Thereafter, the plaintiff moved, among other things, for leave to enter a default judgment against the defendant on the issue of liability. The defendant cross-moved, inter alia, pursuant to CPLR 3012(d) to compel the plaintiff to accept the late answer. The Supreme Court denied the plaintiff's motion and granted that branch of the defendant's motion which was pursuant to CPLR 3012(d) to compel the plaintiff to accept the late answer. The plaintiff appeals.

"In order to avoid the entry of a default judgment, a defendant who has failed to appear or answer the complaint must provide a reasonable excuse for the default and demonstrate a potentially meritorious defense to the action" ( Jong Gwon Kim v. Strippoli, 144 A.D.3d 982, 983, 42 N.Y.S.3d 245 ). A defendant who moves pursuant to CPLR 3012(d) to compel the plaintiff to accept late service of an answer is required to make a similar showing (see id. at 983, 42 N.Y.S.3d 245 ). CPLR 3012(d) expressly provides that "[u]pon the application of a party, the court may extend the time to appear or plead, or compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay or default." "The determination of what constitutes a reasonable excuse lies within the Supreme Court's discretion" ( Gershman v. Ahmad, 131 A.D.3d 1104, 1105, 16 N.Y.S.3d 836 ; see Stewart Tit. Ins. Co. v. Bank of N.Y. Mellon, 154 A.D.3d 656, 661, 61 N.Y.S.3d 634 ). "Whether a proffered excuse is ‘reasonable’ is a ‘sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits’ " ( Fried v. Jacob Holding, Inc., 110 A.D.3d 56, 60, 970 N.Y.S.2d 260, quoting Harcztark v. Drive Variety, Inc., 21 A.D.3d 876, 876–877, 800 N.Y.S.2d 613 ).

Contrary to the plaintiff's contention, the Supreme Court providently exercised its...