Ingvarsdottir v. Gaines, Gruner, Ponzini & Novick, LLP

144 A.D.3d 1097

42 N.Y.S.3d 308

2016 N.Y. Slip Op. 08048

Helga INGVARSDOTTIR, appellant,

v.GAINES, GRUNER, PONZINI & NOVICK, LLP, et al., respondents, et al., defendants.

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

Nov. 30, 2016.

Jonathan R. Pearson, Albany, N.Y., for appellant.

Traub Lieberman Straus & Shrewsberry LLP, Hawthorne, N.Y. (Lisa L. Shrewsberry of counsel), for respondents.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, COLLEEN D. DUFFY, and FRANCESCA E. CONNOLLY, JJ.

In an action to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Westchester County (O. Bellantoni, J.), dated August 14, 2014, which denied her motion for leave to enter a default judgment against the defendants Gaines, Gruner, Ponzini & Novick, LLP, and Denise M. Cossu upon their failure to appear or answer the complaint.

ORDERED that the order is affirmed, with costs.

The summons and complaint in this action were served on the defendants Gaines, Gruner, Ponzini & Novick, LLP, and Denise M. Cossu (hereinafter together the defendants) on or about May 7, 2014. On May 30, 2014, just three days after the defendants' time to answer the complaint or appear in the action had expired, the plaintiff filed a motion for leave to enter a default judgment against them. The defendants opposed the motion, asserting that they had a reasonable excuse for their brief delay and a potentially meritorious defense. The Supreme Court denied the motion, and the plaintiff appeals.

On a motion for leave to enter a default judgment pursuant to CPLR 3215, a plaintiff is required to file proof of: (1) service of a copy or copies of the summons and the complaint, (2) the facts constituting the claim, and (3) the defendant's default (see CPLR 3215[f] ; Fried v. Jacob Holding, Inc., 110 A.D.3d 56, 59, 970 N.Y.S.2d 260 ). To defeat a facially adequate CPLR 3215 motion, a defendant must show either that there was no default, or that it has a reasonable excuse for its delay and a potentially meritorious defense to the action (see Fried v. Jacob Holding, Inc., 110 A.D.3d at 60, 970 N.Y.S.2d 260 ; Wassertheil v. Elburg, LLC, 94 A.D.3d 753, 941 N.Y.S.2d 679 ; New Seven Colors Corp. v. White Bubble Laundromat, Inc., 89 A.D.3d 701, 702, 931 N.Y.S.2d 899 ). “The motion is addressed to the broad discretion of the court, which should also consider whether prejudice has resulted from the delay, whether there is evidence of willfulness on the defaulting defendant's part, and the strong public policy in favor of resolving cases on the merits” (Brice v. City of New York, 139 A.D.3d 888, 889, 33 N.Y.S.3d 316 ). “[I]n an appropriate case, a court may take into account insurance-company delay in determining whether there is a reasonable excuse” (Fried v. Jacob Holding, Inc., 110 A.D.3d at 60, 970 N.Y.S.2d 260 ; see Gerdes v. Canales, 74 A.D.3d 1017, 1018, 903 N.Y.S.2d 499 ; Harcztark v. Drive Variety, Inc., 21 A.D.3d 876, 800 N.Y.S.2d 613 ).

Here, the plaintiff satisfied her CPLR 3215 burden of proving service and the defendants' default, and submitted sufficient proof of the facts constituting her cause of action to recover damages for legal malpractice on the basis that the defendants failed to timely provide notice on her behalf to the sole shareholder of her former employer of her intent to hold him liable for unpaid wages pursuant to Business Corporation Law § 630(a).

In opposition, the defendants submitted evidence demonstrating that their very short delay in contacting the plaintiff's counsel after they defaulted was caused by their insurance carrier's...