DEFAULT VACATED AFTER 6 WEEKS AFTER TIME TO ANSWER EXPIRED

Thousands of dollars in legal fees and costs could have been saved if an Answer was timely served....but this case did have a happy ending so far for the defendant.

P&H Painting, Inc. v Flintlock Constr. Servs., LLC, 2020 NY Slip Op 00603, Decided on January 29, 2020 ,Appellate Division, Second Department

"On or about August 3, 2017, the plaintiff, a subcontractor, commenced this action against the defendant, a general contractor, to recover damages for, among other things, breach of contract. According to the affidavits of service, the plaintiff served the defendant on August 7, 2017, by delivering copies of the summons and complaint to the Secretary of State and by sending a copy of the summons and complaint to the defendant by first-class mail on August 15, 2017. The defendant's time to answer expired on or about September 6, 2017.

On or about September 26, 2017, the plaintiff moved for leave to enter a default judgment, and on October 5, 2017, a default judgment was entered. Less than two weeks later, the defendant moved pursuant to CPLR 317 and 5015(a) to vacate the default judgment and to compel the plaintiff to accept its late answer. The Supreme Court denied the defendant's motion, and the defendant appeals.

Although the general rule is that in order to vacate a default, a party must demonstrate a reasonable excuse for the default and a potentially meritorious defense (see CPLR 5015[a][1]), the sufficiency of an excuse is not as significant where the default is only a short period (see Vallario v 25 W. 24th St. Flatiron, LLC, 149 AD3d 791, 792-793; Chakmakian v Maroney, 78 AD3d 1103, 1104).

Here, the less than six-week delay between when the defendant's time to answer expired and when the defendant moved to vacate the default judgment is brief, and the plaintiff does not allege that the defendant's default was intentional or part of a pattern of neglect (see Vallario v 25 W. 24th St. Flatiron, LLC, 149 AD3d at 793). Moreover, in light of the lack of prejudice to the plaintiff resulting from the defendant's short delay in appearing and seeking to answer the complaint, the existence of a potentially meritorious defense, and the strong public policy favoring resolution of cases on the merits, the Supreme Court should have granted the defendant's motion to vacate its default and to compel the plaintiff to accept the late answer (see Merchants Ins. Group v Hudson Val. Fire Protection Co., Inc., 72 AD3d 762, 764)."