The following numbered papers were used on these motions:

Plaintiff Nicholas James seeks damages resulting from personal injuries sustained on May 20, 2022, while present in the first-floor apartment of defendant Mary Mola. He fell as a result of an electrical malfunction inside the apartment, which was in the building located at 26 St. James Place in Kings County. The building's landlord, 26 St. James Villa LLC, is also named as a defendant in this action. (See NYSCEF Doc No. 9, complaint.)

On May 20, 2022, plaintiff James came to Mola's residence to provide physical training services. It is alleged that while inside the apartment, James fell as a consequence of an electrical malfunction, sustaining a herniation on his spine, a tear on his right shoulder, severe pain on his neck and right thumb, and distortion of his right hip. James alleges the injuries totally disabled him for ten days, from May 20-30, 2022, and partially disabled him for four months, notably in his right hand, and that he felt symptoms from his injuries for approximately one year. James seeks damages in the amount of $1000.00 due to lost wages during the ten-day period of total disability, in which he was unable to provide physical training services, charged at $100.00 per hour. Plaintiff also seeks damages for his injuries. (See NYSCEF Doc No. 23, bill of particulars.)

James alleges his injuries result from defendants' negligence and that defendants were provided actual notice of the defective electrical system which resulted in said injuries. Plaintiff states actual notice was provided via oral notice to both defendants. (See id.)

Service of the summons and complaint was effectuated on May 25, 2023 (see NYSCEF Doc No. 10, aff of service). On March 27, 2024, plaintiff James filed a motion seeking a default judgment against defendant Mola (see NYSCEF Doc No. 6, notice of motion). Mola's answer was served via NYSCEF on May 14, 2024 (see NYSCEF Doc No. 15, Block aff ¶ 14). On May 17, 2024, defendant Mola filed a cross-motion in opposition to the motion for a default judgment (see NYSCEF Doc No. 14, notice of cross-motion). On October 22, 2024, James filed [*2]opposition to the cross-motion (see NYSCEF Doc No. 22, Barango-Tariah reply aff). On October 24, 2024, Mola filed a reply in further support of her cross-motion (see NYSCEF Doc No. 26, Block reply aff).

Should defendant Mola's failure to timely answer the complaint be excused and plaintiff James compelled to accept Mola's answer as timely pursuant to CPLR 3012 (d)^[FN1] and 2004 ^[FN2] ?

The initial motion in the case at bar seeks relief via a default judgment in favor of James (see CPLR 3215 ^[FN3] ). James argues that he is entitled to such relief against Mola for failure to interpose a written answer to the complaint within thirty days ^[FN4] (see NYSCEF Doc No. 7, James aff).

The cross-motion of Mola argues that the motion for a default judgment should be denied due to the existence of a justifiable excuse and a meritorious defense. Mola also seeks to have her answer accepted as timely.

Mola argues in her affidavit that there is a justifiable excuse. She asserts that she received the summons and complaint in or about May of 2023 (see NYSCEF Doc No. 17, Mola aff ¶ 4) and immediately contacted plaintiff's attorney, Mr. Barango-Tariah, upon receipt of the documents. She further states that Barango-Tariah advised her that she did not need to appear or retain an attorney as co-defendant St. James Villa would take the lead on defending the action (see id. ¶ 5). Mola followed this advice and thereafter received a notice of default against her in [*3]March of 2024. Upon receipt of the motion papers, Mola contacted her insurer and apprised them of the aforementioned circumstances. (See id. ¶ 6.) At such point, counsel was assigned to Mola, who requested that plaintiff withdraw the default motion and allow Mola to answer. The verified answer was entered on NYSCEF on May 14, 2024 (see NYSCEF Doc No. 15, Block aff ¶ 14), and the short delay in serving the answer did not prejudice James' prosecution of the action (see id. ¶ 4, 5). Furthermore, Mola argues that there is a meritorious defense in that Mola did not own the premises where James was allegedly injured (see id. ¶ 11). Moreover, James fails to state a prima facie case of negligence as he fails to state whether Mola had notice of the defect or if a defect even existed prior to his injury (see id. ¶¶ 5, 22, 24).

In opposition to the cross-motion, plaintiff's counsel Barango-Tariah argues in his affirmation that he did not advise Mola but told her to contact her insurance company, and that she had oral notice of the defect prior to James' injury (see NYSCEF Doc No. 22, Barango-Tariah reply aff ¶¶ 2, 3). Therefore, the default motion should be granted, and the cross-motion should be denied in its entirety.

In reply, Mola argues that James has failed to sufficiently contest Mola's reasonable excuse for default, which she asserts is based on Mr. Barango-Tariah's incorrect and improper legal advice. While Barango-Tariah contests the subject matter of his call with Ms. Mola, he does not dispute that he had a phone call with her and provided her with instructions. Second, plaintiff has not sufficiently contested the potentially meritorious defense since defendant Mola did not own, control, or have a duty to maintain the fixtures in the subject apartment. (See NYSCEF Doc No. 26, Block reply aff ¶¶ 3, 4.) Nor does the verified bill of particulars (NYSCEF Doc No. 23), which alleges that Mola had actual notice of the defect, detract from Mola's admissible affidavit which states she did not have notice (see id. ¶ 5). Citing Toth v Bloshinsky (39 AD3d 848 [2d Dept 2007]), it is argued by defendant Mola that the purpose of a bill of particulars is to amplify pleadings, limit proof, and prevent surprise at trial, not to provide evidentiary material (see NYSCEF Doc No. 26, Block reply aff ¶ 5). Finally, defendant Mola notes that plaintiff James did not enter the verified bill of particulars on NYSCEF until after the filing of the subject cross-motion (see id.).

"To successfully oppose a motion for leave to enter a default judgment based on a failure to appear or timely serve an answer, a defaulting defendant must demonstrate a reasonable excuse for the delay and the existence of a potentially meritorious defense to the action" (Sena v Alpha Plumbing and Heating Servs., Inc., 227 AD3d 1116, 1117 [2d Dept 2024]; see Sharestates Inv. LLC v Hercules, 166 AD3d 700, 701 [2d Dept 2018]). The determination of a reasonable excuse is left to the court's sound discretion (see JPMorgan Chase Bank, N.A. v Baptiste, 188 AD3d 848 [2d Dept 2020]).

"Whether there is a reasonable excuse for a default is a discretionary, 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" (Gately v Drummond, 161 AD3d 947, 949 [2d Dept 2018] [internal quotation marks omitted]).

Here, defendant Mola established a reasonable excuse for the delay as she stated in her affidavit that she was given incorrect advice by plaintiff's attorney, which delayed her from [*4]seeking representation and thus, setting forth a written answer within the time permitted by CPLR 3012 (c). Furthermore, such evidence of a phone call between Mola and plaintiff's attorney is substantiated in attorney Barango-Tariah's affirmation in opposition of the cross-motion which states, "Upon defendant Mary Mola contacting plaintiff's attorney by phone. . . ." (NYSCEF Doc No. 24 ¶ 2)." The record indicates that Mola's delay was not willful — it is evident that she delayed in contacting an attorney due to statements made to her by plaintiff's attorney — and plaintiff has failed to set forth an argument that accepting Mola's answer as timely would be prejudicial. It matters not whether attorney Barango-Tariah advised her that she did not need to appear or retain an attorney since co-defendant St. James Villa would take the lead on defending the action or that he told her to contact her insurance company. Whatever he said to her led to her delay.

Any delay in serving the Verified Answer was minimal. Since Mola was served by substituted service and mailing (see NYSCEF Doc No. 10, aff of service), "proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing" (CPLR 308 [2]). Here, proof of service was not filed with the clerk of the court (via NYSCEF) within 20 days after the later of the delivery or mailing, but rather filing of proof of service was delayed until plaintiff made his motion for a default judgment: proof of service was contained within Exhibit B to the motion, which was filed on March 27, 2024. Thus, service was complete ten days later, to wit, April 6, 2024. As provided in CPLR 3012 (c), "service of an answer shall be made within thirty days after service is complete," where the summons and complaint were not personally delivered to the person to be served. The thirtieth day after April 6, 2024 was May 6, 2024, i.e., May 6, 2024 was defendant Mola's deadline for answering the complaint. Mola's answer was served via NYSCEF on May 14, 2024 (see NYSCEF Doc No. 15, Block aff ¶ 14). It was only eight days late. An answer one day late was excused in Finkelstein v Sunshine (47 AD3d 882 [2d Dept 2008]), and so too should an eight-day lateness where there was already an answer served (see Arias v First Presbyt. Church in Jamaica, 97 AD3d 712 [2d Dept 2012] [two-month lateness]). Public policy favors resolving cases on the merits (see 209 Barbey Street Trust v Scotland, 231 AD3d 778, 779 [2d Dept 2024]).

As noted, "the longer the plaintiff delays filing proof of service, which is itself subject to a time limitation under paragraphs two and four of CPLR 308, the longer the plaintiff extends the defendant's time to appear" (Patrick M. Connors, Prac Commentaries, McKinney's Cons Laws of NY, CPLR C3012:18). That is what transpired here. Plaintiff failed to file proof of service immediately upon service being made on defendant Mola by substituted service and mailing. Plaintiff himself dragged out filing proof of service by waiting to file it as part of his motion for a default judgment. It ill behooves plaintiff to complain that defendant Mola did not timely answer his complaint.^[FN5]

It is further noted:

If it is missed by only a few days, the court will be prone to extend the time to appear, CPLR 3012(d); CPLR 2005, even vacating a default judgment to do so. See CPLR 5015(a)(1). This teaches the plaintiff to forgive short delays but, unfortunately, it teaches [*5]defendants to create them. In any event, New York has a strong policy in favor of reaching results on the merits and its natural concomitant is a policy against allowing defaults, except in egregious circumstances. See Practice Commentary CPLR 3215, C3215:24. (Connors, Prac Commentaries, CPLR C3012:18.)

The second part of the analysis is whether there was a potentially meritorious defense. A defense need not be established as a matter of law but only needs to make out a prima facie showing of a meritorious defense (see Quis v Bolden, 298 AD2d 375 [2d Dept 2002]). Here, Mola states that she had no prior notice of the defect and did not contribute to James' injury. Additionally, she does not own the property in question. Therefore, Mola also has a potentially meritorious defense which would warrant the excusal of the late service of her answer. Her answer should be deemed timely under CPLR 2004 and 3012 (d).

Accordingly, Plaintiff Nicholas James' motion for default judgment against defendant Mary Mola (Motion Sequence No. 1) is DENIED. Defendant Mary Mola's cross-motion to excuse her default and compel plaintiff to accept service of her answer as timely (Motion Sequence No. 2) is GRANTED.