Zeccola & Selinger Llc v. Horowitz

• Decision Date: 25 October 2011
• Parties: ZECCOLA & SELINGER, LLC, appellant,v.Harvey HOROWITZ, et al., respondents.
• Court: New York Supreme Court — Appellate Division

88 A.D.3d 992

931 N.Y.S.2d 536

2011 N.Y. Slip Op. 07632

ZECCOLA & SELINGER, LLC, appellant,

v.Harvey HOROWITZ, et al., respondents.

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

Oct. 25, 2011.

OPINION TEXT STARTS HEREZeccola & Selinger, LLC, Goshen, N.Y. (Mark A. Schwab of counsel), appellant pro se.Arnold W. Blatt, New City, N.Y., for respondents.

In an action to recover legal fees for services rendered, the plaintiff appeals from an order of the Supreme Court, Orange County (McGuirk, J.), dated November 8, 2010, which granted the defendants' motion to vacate a clerk's judgment of the same court dated September 9, 2010, entered upon the defendants' default in appearing or answering, to vacate their default in appearing or answering, and to compel it to accept their answer.

ORDERED that the order is affirmed, with costs.

The Orange County Clerk did not have the authority to enter a clerk's judgment against the defendants under CPLR 3215(a), as the plaintiff's cause of action was not for a “sum certain” ( see Reynolds Sec. v. Underwriters Bank & Trust Co., 44 N.Y.2d 568, 572, 406 N.Y.S.2d 743, 378 N.E.2d 106; Stephan B. Gleich & Assoc. v. Gritsipis, 87 A.D.3d 216, 927 N.Y.S.2d 349; Ayres Mem. Animal Shelter, Inc. v. Montgomery County Socy. for Prevention of Cruelty to Animals, 17 A.D.3d 904, 904–905, 793 N.Y.S.2d 608; Pikulin v. Mikshakov, 258 A.D.2d 450, 451, 684 N.Y.S.2d 598; Maxwell v. First Port Jefferson Corp., 31 A.D.2d 813, 297 N.Y.S.2d 885; Geer, Du Bois & Co. v. Scott & Sons Co., 25 A.D.2d 423, 266 N.Y.S.2d 580). Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was to vacate the clerk's judgment.

Furthermore, the Supreme Court providently exercised its discretion in granting those branches of the defendants' motion which were to vacate their default in appearing or answering and to compel acceptance of their answer ( see CPLR 3012[d] ). In light of the lack of any prejudice to the plaintiff resulting from the minimal delay by the individual defendants, after appearing, in serving an answer to the complaint, and the short delay by the corporate defendant in appearing and answering the complaint, the lack of willfulness on the part of the defendants, the existence of potentially meritorious defenses, and the public policy favoring the resolution of cases on the merits, the defendants' default in appearing or answering were properly excused ( see CPLR 2004; Zanelli v. JMM Raceway, LLC, 83...