Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion:

Upon the foregoing cited papers, and oral arguments heard today, March 20, 2025, the Decision/Order on the defendant's Motion to Dismiss and the plaintiff's Request for Inquest, along with the plaintiff's Motion for a Default Judgment filed on December 27, 2024, yet to be calendared and advanced to today, are decided as follows:

On October 19, 2024, Plaintiff, self-represented, commenced this action with the filing of a Summons and Complaint. Service of process was effectuated on Defendant via personal service on November 25, 2024. On December 17, 2024, Defendant failed to appear, and Plaintiff moved for an inquest, which was scheduled to be held on January 16, 2025. On [*2]December 27, 2024, Defendant filed a Motion to Dismiss and later appeared on the scheduled inquest date. This matter was subsequently scheduled for a pre-trial conference and oral arguments on Defendant's motion to dismiss today, March 20, 2025.

Plaintiff's Request for Inquest and Motion for Default Judgment are addressed herein and denied as moot. Defendant appeared in this action by filing a motion to dismiss within thirty-two (32) days of service of process which was effectuated on November 25, 2024. This Court adheres to the strong public policy in favor of resolving cases on the merits and deems the two-day delay during the holiday season de minimus. 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. Harcztark v. Drive Variety, Inc., 21 AD3d 876 (2nd Dept., 2005). Plaintiff has not demonstrated any prejudice, and in the interest of substantial justice, the Court finds Defendant's excuse for the default to be reasonable, and in its discretion, denies Plaintiff's request for an inquest and default.

Defendant files this pre-Answer motion seeking the dismissal of the pleadings pursuant to CPLR § 3211(a)(7) and CPLR § 325. Defendant argues that none of Plaintiff's claims are applicable to Defendant. Defendant states that she is employed by Atlantis Operating LLC d/b/a The Phoenix Rehabilitation and Nursing Center (hereinafter referred to as "the facility"), as the Assistant Director of Nursing. Defendant states that Plaintiff was also employed by the facility as a Certified Nursing Assistant. Defendant argues that she is not the owner of the facility, nor did she employ Plaintiff, thus Plaintiff's claims for failure to provide proper services, monies due, failure to pay for services rendered, breach of contract or warranty and loss of time from work, do not give rise to a claim against her for the relief sought.

Defendant avers that the complaint does not provide "the nature of substance" of this action, as she is an employee of the facility. Defendant further argues that this matter does not meet the threshold amount required by the Civil Court to commence or continue an action and should be removed to Small Claims Court as her claims amount to less than $10,000.00. Defendant reasons that any investigation, suspension and/or termination an employee is subjected to, were issued by the facility based on its policy and/or regulations, and not by Defendant in her individual capacity.

In opposition, Plaintiff argues that Defendant's motion should be denied as it is misleading. Plaintiff argues that Defendant was personally served in compliance with the law and was fully aware of this lawsuit. Plaintiff states that she has complied by filing "all necessary paperwork following Court guidelines." Plaintiff argues that this matter is separate and apart from any other matter she has commenced against other parties and should remain separate. Plaintiff concludes that Defendant was aware of this action as service was proper and failed to respond within the time constraints required by law and therefore the Court should deny Defendant's motion and grant a default judgment in favor of Plaintiff.

When assessing a motion to dismiss a complaint pursuant to CPLR § 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept as true all facts as alleged in the pleading, accord the pleader the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory. V. Groppa Pools, Inc. v. Massello, 106 AD3d 722 (2nd Dept., 2013). The test to be applied is whether the complaint "gives sufficient notice of the transactions, occurrences, or series of transactions or occurrences intended to be proved and whether the requisite elements of any cause of action known to our law can be discerned from its averments." JP Morgan Chase v. J.H. Elec. of New York, Inc., 69 AD3d 802 (2nd Dept., 2010).

"An act is considered to be within the scope of employment if it is performed while the employee is engaged generally in the business of the employer, or if the act may be reasonably said to be necessary or incidental to such employment." Selmani v. City of New York, 116 AD3d 943 (2nd Dept., 2014), citing, Pinto v. Tenenbaum, 105 AD3d 930. Where, however, an employee's actions are taken for wholly personal reasons, which are not job related, the actions cannot be said to fall within the scope of employment. Id., citing, Danner-Cantalino v. City of New York, 85 AD3d 709; Fernandez v. Rustic Inn, Inc., 60 AD3d 893.

An employer is vicariously liable for the torts of its employee, even when the employee's actions are intentional, if the actions were done while the employee was acting within the scope of his or her employment. Kirkman by Kirkman v. Astoria Gen. Hosp., 204 AD2d 401 (2nd Dept., 1994), citing, Riviello v. Waldron, 47 NY2d 297 (emphasis added). However, there is no vicarious liability on the part of the employer for torts committed by the employee solely for personal motives unrelated to the furtherance of the employers' business. Id.

Here, the court finds that the complaint insufficiently states a cause of action against Defendant. Furthermore, Plaintiff has not refuted the fact that Defendant is an employee working in the capacity of Assistant Director of the facility and is not Plaintiff's employer. Moreover, Plaintiff's inability to demonstrate that Defendant personally benefited from any of the alleged wrongful acts, or otherwise acted outside the scope of her employment, constrains the Court to conclude that Defendant is the wrong party. It is evident that the conduct Plaintiff complains of occurred during the course of Defendant's employment and arose out of Defendant's relationship as Plaintiff's supervisor, thus, a cause of action against Defendant in her individual capacity while acting within the scope of her employment must fail.

Accordingly, it is hereby

ORDERED, that the plaintiff's request for an inquest and motion for default judgment is denied as moot due to Defendant's appearance in this matter; and it is further

ORDERED, that defendant's motion to dismiss is granted for the reasons stated above, and the complaint is dismissed in its entirety.

All other arguments are rendered academic.

This constitutes the decision/order of this Court.