M&E 73-75 LLC v 57 Fusion LLC, 2014 NY Slip Op 07077 (1st Dept. 2014)
This outlines the difficulties of obtaining a default in the First Department
“The IAS court providently exercised its discretion by denying plaintiff’s motion (see e.g. Nutley v Skydive the Ranch, 65 AD3d 443, 444 [1st Dept 2009]). Defendant made the requisite showing of a reasonable excuse for failing to answer the complaint (see Whittemore v Yeo, 99 AD3d 496, 496-497 [1st Dept 2012]). The factors to be considered in determining the sufficiency of the excuse all weigh in defendant’s favor (see New Media Holdings Co. LLC v Kagalovsky, 97 AD3d 463, 465 [1st Dept 2012]). Defendant did not willfully default, as it claims that it did not receive plaintiff’s summons and complaint. Further, shortly after plaintiff served defendant, defendant filed its own action against plaintiff (index No. 154700-12), which evidenced its intent to defend plaintiff’s action (see Arrington v Bronx Jean Co., Inc., 76 AD3d 461, 463 [1st Dept 2010]). The order dismissing defendant’s action did not collaterally estop defendant from arguing that it had a reasonable excuse for defaulting in this action. Indeed, whether defendant had a reasonable excuse was neither material nor essential to that decision (see Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]). Further, defendant was not required to submit an affidavit of merit in opposition to plaintiff’s motion (Arrington, 76 AD3d at 462). Moreover, the motion court had the power to sua sponte allow defendant to interpose a late answer (see Higgins v Bellet Constr. Co., 287 AD2d 377 [1st Dept 2001])”
As a casual observer, it seems common parlance in the Second Department that an allegation of reasonable excuse based upon “non receipt of a summons and complaint” relates solely to service; the failure to controvert same will be fatal to the defaulter. Here, the Court found this to be a reasonable excuse (upon an allegation of non-receipt) and then stated that filing its own action evinced a desire to defend on the merits. I believe the First Department’s view makes sense, as it should be easier (rather than harder) to vacate defaults where a party made a mistake in appearing or opposing, as opposed to plainly deciding not to defend.
