Motion to Set Aside or Vacate Judgment, Default or Dismissal in Sarah Rodriguez v. Cdc East 105th Street Realty, L.P., Cdc 111th Street Realty, L.P.| Trellis.Law

On October 30, 2017 a Motion,Ex Parte was filed involving a dispute between Sarah Rodriguez, and Cdc 111Th Street Realty, L.P., Cdc East 105Th Street Realty, L.P., for Torts - Other Negligence (Premises) in the District Court of Bronx County.

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FILED: BRONX COUNTY CLERK 09/30/2022 08:36 PM INDEX NO. 30287/2017E
NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 09/30/2022

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX

SARAH RODRIGUEZ, Index No. 30287/2017E

Plaintiff,

–against–

CDC EAST 105TH STREET REALTY, L.P. and CDC
111TH STREET REALTY, L.P.,

Defendants.

MEMORANDUM OF LAW IN SUPPORT OF
DEFENDANTS’ MOTION TO VACATE DEFAULT JUDGMENT

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ..................................................................................................... ii
PRELIMINARY STATEMENT ............................................................................................. 1
RELEVANT PROCEDURAL HISTORY .............................................................................. 2
RELEVANT FACTUAL HISTORY ....................................................................................... 5
ARGUMENT ........................................................................................................................... 6
I. DEFAULT JUDGMENT AGAINST DEFENDANTS’ SHOULD
BE VACATED AND DEFENDANTS ANSWER SHOULD BE
CONSIDERED TIMELY ...................................................................................... 6
A. Defendants Did Not Receive Notice of this Action Until
June 3, 2022 and Have Otherwise Established a Reasonable
Excuse for Default ........................................................................................ 7
B. Defendants Have a Meritorious Defenses to the Complaint ......................... 9
C. The Court Should Deem Defendants’ Answer Timely Filed ...................... 11
CONCLUSION ...................................................................................................................... 12

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TABLE OF AUTHORITIES

PAGE(s)

CASES

Abel v. Estate of Collins,
73 A.D.3d 1423 (3d Dep’t 2010) .......................................................................................6, 7, 9

Bev. Distribs. of Nev., Inc. v. Schenley Indus.,
155 A.D.2d 356 (1st Dep’t 1989) ..............................................................................................8

Cohen v. Michelle Tenants Corp.,
63 A.D.3d 1097 (2d Dep’t 2009) ...........................................................................................6, 8

DiIorio v. Antonelli,
240 A.D.2d 537 (2d Dep’t 1997) ...............................................................................................9

Eugene Di Lorenzo, Inc. v. A.C. Dutton Lumber Co.,
67 N.Y.2d 138 (1986) ........................................................................................................6, 7, 8

Gomez by DeJesus v. Walton Realty Assocs.,
258 A.D.2d 307 (1st Dep’t 1999) ............................................................................................10

Inwald Enterprises, LLC v. Aloha Energy,
153 A.D.3d 1008 (3d Dep’t 2017) .........................................................................................6, 7

Leemilt’s Petroleum v. Pub. Storage,
193 A.D.2d 650 (2d Dep’t 1993) ...............................................................................................9

Luderowski v. Sexton,
152 A.D.3d 918 (3d Dep’t 2017) ...............................................................................................7

Monsanto v. Target Corp.,
2018 NY Slip Op 30303(U), (Suffolk Cty. Sup. Ct. Feb. 7, 2018) .........................................11

Passeri v. Tomlins,
141 A.D.3d 816 (3d Dep’t 2016) ...............................................................................................7

Polir Construction Inc. v. Etingin,
297 A.D.2d 509 (1st Dep’t 2002) ............................................................................................10

Price v. Polisner,
172 A.D.2d 422 (1st Dep’t 1991) ..............................................................................................9

Puchner v. Nastke,
91 A.D.3d 1261 (3d Dep’t 2012) ...............................................................................................7

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Roche v. New York City Hous. Auth.,
58 Misc. 3d 1228(A), (N.Y. Sup. Ct. 2018).............................................................................11

Singh v. United Cerebral Palsy of New York City, Inc.,
72 A.D.3d 272 (1st Dep’t 2010) ..............................................................................................11

Volin v. City Beach Catering Corp.,
166 A.D.2d 583 (2d Dep’t 1990) ...............................................................................................9

Wade v. Village of Whitehall,
46 A.D.3d 1302 (3d Dep’t 2007) ...............................................................................................7

Wadsworth v. Sweet,
106 A.D.3d 1433 (3d Dep’t 2013) .............................................................................................6

Statutes

Business Corporation Law § 306 .....................................................................................................8

CPLR 317............................................................................................................................... passim

CPLR 2004.................................................................................................................................1, 12

CPLR 2104.......................................................................................................................................9

CPLR 3012(d) ............................................................................................................................1, 12

CPLR 3215.......................................................................................................................................9

CPLR 3215(g)(4) .........................................................................................................................3, 4

CPLR 5015(a) ........................................................................................................................ passim

iii

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Defendants CDC EAST 105TH STREET REALTY, L.P. and CDC 111TH STREET

REALTY, L.P. (“Defendants”) submit this memorandum of law in support of their motion pursuant

to CPLR 317 and 5015(a) to vacate the default judgment entered by Plaintiff SARAH

RODRIGUEZ (“Plaintiff”) against Defendants and to order Defendants’ Answer be deemed timely

filed pursuant to CPLR 2004 and 3012(d) nunc pro tunc.

PRELIMINARY STATEMENT

Defendants request that default judgment entered by this Court on August 19, 2022 be

vacated because Defendants clearly establish: (1) excusable default; and (2) meritorious defenses

to the claims asserted by Plaintiff.

Regarding excusable default, Defendants first received actual service of papers involving

this action on June 3, 2022 at their office located at 1140 Broadway, Suite 904, New York, New

York. Upon receipt of these papers, Defendants promptly notified their insurance broker and

private attorney and filed their Answer less than one week later, on June 9, 2022 (with verbal

consent of Plaintiff’s attorney). Prior attempts at actual service on Defendants were unsuccessful

because: (1) Plaintiff incorrectly served papers to the wrong floor of Defendants’ former office

(the offices were previously located on the 3rd floor of 100 West 23rd Street, New York, New York

but Plaintiff sent papers to the 4th floor of that building); and (2) the Secretary of State (“SOS”)

had the wrong address on file for Defendants, so the SOS never served any documents on

Defendants. Defendants accordingly have a reasonable excuse for not previously appearing —

Defendants never received actual service of any papers in this action until Plaintiff’s most recent

motion for renewal, satisfying the timeliness requirements of both CPLR 317 and 5015(a). The

delay in appearing was also clearly unintentional as Defendants filed their Answer within one week

of their first notice of this matter.

Defendants also possess meritorious defenses to Plaintiff’s premises liability claims
1

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because Defendant CDC 111th Street Realty, L.P. (“111th Street”) never had any ownership interest,

control, or operational authority over the premises where the incident allegedly occurred at 2018

3rd Avenue a/k/a 188 East 111th Street (“Premises”). Furthermore, despite Plaintiff’s claimed injury

at the Premises on April 15, 2015 due to “a bulletin/wall board . . . suddenly dislodging,” see infra

Affidavit of Plaintiff, Exhibit C, CDC East 105th Street Realty, L.P. (“105th Street”) has no record

of the incident or records of any repairs to the bulletin/wall board. Further, 105th Street never

received any complaints about the bulletin/wall board, either before the alleged incident or after.

Together, these defenses are meritorious and raise questions about Plaintiff’s ability to show that

she suffered any injury on the property at 108 3rd Avenue as alleged, much less that Defendants

were negligent in causing such injury.

Therefore, the default judgment against Defendants should be vacated and the Court should

deem Defendants’ June 9, 2022 Answer timely filed nunc pro tunc.

RELEVANT PROCEDURAL HISTORY

Plaintiff filed a Summons and Complaint in this action on or about October 30, 2017

(“Complaint”), claiming premises liability against Defendants. See Affirmation of John J.

Giardino (“Giardino Aff.”), Exhibit A. The Complaint provides that Defendants’ address is 100

West 23rd Street, 4th Floor, New York, New York, but at the time of service of the Complaint the

offices of Defendants were located at 1140 Broadway, Suite 904, New York, New York (and

Defendants’ office at 100 West 23rd Street was on the 3rd floor, not the 4th). See id; Affidavit of

William Guerrero dated September 30, 2022 (“Guerrero Aff.”) ¶¶ 6-7; Exhibit 1. The affidavit of

service indicates that service of the Complaint was made solely on the SOS on November 30,

2017. See Giardino Aff., Exhibit B. At the time of this service, Defendants had inadvertently not

updated their address with the SOS and were unaware the SOS had their incorrect old address on

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file. See Guerrero Aff. ¶ 17. Accordingly, Defendants never actually received the Complaint or

notice of this action at that time. Id.

On or about November 7, 2018, Plaintiff filed a motion for default judgment against

Defendants. See Giardino Aff., Exhibit C. Again, Plaintiff sent the papers to the incorrect 100

West 23rd Street, 4th Floor address and again service was made on the SOS who did not have the

correct address on file. See Giardino Aff., Exhibits C & D. Accordingly, Defendants never

received actual notice of Plaintiff’s motion for default. See Guerrero Aff. ¶¶ 9-10.

Furthermore, Plaintiff did not comply with CPLR 3215(g)(4), which requires service of the

papers seeking default on the “Defendant corporation[s] at [their] last known address” because a

simple Google search would have revealed Defendants’ office address was 1140 Broadway, Suite

904, New York, New York at that time. See Guerrero Aff. ¶ 6. On June 3, 2019, the Court denied

Plaintiff’s Motion for Default because Plaintiff failed to include any evidence that CPLR

3215(g)(4) was satisfied. See Giardino Aff., Exhibit E.

On February 3, 2020, Plaintiff appeared for a status conference where the Court ordered

“Plaintiff’s counsel to refile motion for default judgment” and also ordered that “failure to comply

with the terms of this order will result in the dismissal of this action with prejudice.” See Giardino

Aff., Exhibit F. Rather than re-filing the motion, with the procedural protections inherent to a

default motion, Plaintiff — more than two years later on May 20, 2022 — filed a motion to renew

the previously denied motion. See Giardino Aff., Exhibit G.

In the Affirmation in Support of that motion, Plaintiff argued that renewal was appropriate

because CPLR 3215(g)(4) mailings were sent to Defendants (at the wrong address) in the initial

default motion but were inadvertently not included with the motion. See Giardino Aff., Exhibit H.

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For the first time, Plaintiff served this motion on Defendants’ actual office address: 1140

Broadway, Suite 904, New York, New York. Id.

On June 3, 2022, for the first time, Defendants received service of papers relating to this

matter and for the first time had notice of the existence of this lawsuit. See Guerrero Aff. ¶¶ 9-10.

Upon receipt of these papers, the principal of Defendants, William Guerrero, immediately

contacted Defendants’ insurance broker and private attorney to respond to the lawsuit. Id; Giardino

Aff. ¶ 11. Defendants’ private attorney thereafter promptly contacted Plaintiff’s counsel via phone

and email and discussed Defendants filing an Answer (especially given that Defendants were

insured), to which Plaintiff’s counsel consented as long as the Answer was “clean.” See Giardino

Aff. ¶ 12-13, Exhibit I. Defendants’ private counsel thereafter filed what he considered to be a

“clean” Answer on June 9, 2022. See Giardino Aff. ¶ 14, Exhibit J. In reliance on Plaintiff’s

counsel’s oral and written representations that Defendants could file their Answer, Defendants filed

their Answer instead of filing an opposition to Plaintiff’s motion to renew. See Giardino Aff. ¶ 15.

Notwithstanding Plaintiff’s counsel’s prior consent, on June 23, 2022, nearly two weeks after

Defendants served the Answer on Plaintiff’s counsel, Plaintiff’s counsel filed a Notice of Rejection

of the Answer. See Giardino Aff. ¶ 16, Exhibit K. Despite the above attempts by Defendants to

litigate amicably and with courtesy, Defendants’ counsel did not receive the reciprocal courtesy of

any notice regarding Plaintiff’s counsel’s subsequent filings or Plaintiff’s counsel’s later

correspondence with the Court, despite being the counsel of record. See Giardino Aff. ¶ 17.

On August 19, 2022, the Court granted Plaintiff’s renewal motion on the basis that evidence

that the CPLR 3215(g)(4) mailings were sent (to the wrong address) with the initial motion

warranted granting default judgment against Defendants and Plaintiff entered the order the same

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day. See Giardino Aff., Exhibits L & M. On August 31, 2022, Plaintiff filed a Note of Issue

requesting an inquest on damages. See Giardino Aff., Exhibit N.

Defendants now seek to have their default vacated and a Court order deeming their Answer

timely filed nunc pro tunc.

RELEVANT FACTUAL HISTORY

Plaintiff alleges that Defendants owned and operated the Premises and that Plaintiff

allegedly sustained injury thereat on April 15, 2015. See generally, Giardino Aff., Exhibit A. In

support of Plaintiff’s initial default motion, Plaintiff submitted an affidavit dated November 7,

2018 whereby Plaintiff averred “[t]hat on April 15, 2015, while delivering mail into mailboxes for

the United States Postal Service, to the building located at 2018 3rd Avenue a/k/a 188 East 111th

Street, County of New York, City and State of New York, a bulletin/wall board encased in glass

above the mailboxes suddenly dislodged from the wall and hit me.” See Giardino Aff., Exhibit C,

p. 3.

The Premises identified by Plaintiff in her Complaint is entirely owned and operated by

105th Street. See Guerrero Aff. ¶ 12. 111th Street has never had an ownership interest, control or

operational authority over the Premises. Id. Exhibit 1. Since receiving first notice of this action

on June 3, 2022, Defendants have investigated Plaintiff’s claims by inter alia speaking with the

superintendent of the Premises at the time of the alleged incident, Jose Tejada, and reviewing

relevant records. Id. Despite their investigation, Defendants have been unable to locate any

evidence that the incident ever occurred, any evidence that the bulletin/wall board ever fell off the

wall, any evidence that the bulletin/wall board at the Premises required repairs at any time, or any

evidence of complaints concerning the “bulletin/wall board” before or after the incident. Id.

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ARGUMENT

I. DEFAULT JUDGMENT AGAINST DEFENDANTS SHOULD BE VACATED AND
DEFENDANTS’ ANSWER SHOULD BE CONSIDERED TIMELY

Pursuant to CPLR 317,

A person served with a summons other than by personal delivery to
him or to his agent for service designated under rule 318 . . . who
does not appear may be allowed to defend the action within one year
after he obtains knowledge of entry of the judgment . . . upon a
finding of the court that he did not personally receive notice of the
summons in time to defend and has a meritorious defense.

A default judgment is appropriately vacated where the defendant: (1) has not been personally

served (or served via agent pursuant to CPLR 318), (2) “did not personally receive notice of the

summons in time to defend and has a meritorious defense,” (3) “establishes the existence of a

potentially meritorious defense,” and (4) moves within one year of knowledge of the entry of

default judgment. Cohen v. Michelle Tenants Corp., 63 A.D.3d 1097, 1098 (2d Dep’t 2009).

Service on an entity by the Secretary of State is not considered personal service and is not an

obstacle to relief under CPLR 317. Id.

Pursuant to CPLR 5015(a)(1), it is also well settled that default will be vacated if the

defaulting party presents a reasonable excuse for default in addition to a meritorious defense. See

Wadsworth v. Sweet, 106 A.D.3d 1433, 1434 (3d Dep’t 2013); Abel v. Estate of Collins, 73 A.D.3d

1423, 1424 (3d Dep’t 2010). CPLR 5015(a) differs from CPLR 317, in that it requires the

defendant moving to show a “reasonable excuse” for its delay. Eugene Di Lorenzo, Inc. v. A.C.

Dutton Lumber Co., 67 N.Y.2d 138, 141 (1986). The quantum of proof required to establish a

reasonable excuse for default is less stringent than that required on a motion for summary

judgment. See Inwald Enterprises, LLC v. Aloha Energy, 153 A.D.3d 1008, 1010 (3d Dep’t 2017)

(quoting Abel v. Estate of Collins, 73 A.D.3d 1423, 1425 (3d Dep’t 2010)). A defendant’s excuse

for defaulting will be considered reasonable when the delay in responding was not willful, lengthy

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or prejudicial to the plaintiff. See Puchner v. Nastke, 91 A.D.3d 1261, 1262 (3d Dep’t 2012). As

for a meritorious defense, a defendant is only required to make a prima facie showing of legal

merit and is not required to establish a defense as a matter of law. Luderowski v. Sexton, 152

A.D.3d 918, 920 (3d Dep’t 2017); see also Passeri v. Tomlins, 141 A.D.3d 816, 819 (3d Dep’t

2016) (“[W]e find that KVA met its burden to set forth sufficient facts to make a prima facie

showing of legal merit in its defense” (quotations omitted)).

The requirements that a defaulting party demonstrate a reasonable excuse and meritorious

defense are not exclusive; courts retain inherent discretionary power to excuse defaults for

sufficient reason and in the interests of justice. See Inwald Enterprises, LLC, 153 A.D.3d at 1010–

11. Moreover, there is a strong public policy in favor of resolving cases on the merits, rather than

by default judgment. See Wade v. Village of Whitehall, 46 A.D.3d 1302, 1303 (3d Dep’t 2007);

Puchner, 91 A.D.3d at 1262.

A. Defendants Did Not Receive Notice of this Action Until June 3, 2022 and
Have Otherwise Established a Reasonable Excuse for Default

Defendants satisfy the thresholds set by both CPLR 317 and 5015(a).

Addressing CPLR 317, the record is clear that Defendants did not receive actual notice of

this action until they were served with Plaintiff’s motion to renew on June 3, 2022 — because

Plaintiff had previously served the wrong address and the SOS did not have the correct address on

file. See Guerrero Aff. ¶ 17. Defendants also make this application within one year of Plaintiff’s

entry of the order granting default judgment on August 19, 2022. Accordingly, Defendants are

entitled to vacatur of the default judgment entered against them having satisfied the timing

requirements of CPLR 317 and demonstrating the existence of a meritorious defense (see infra

I.B.) without any need “to show a reasonable excuse for its delay.” Eugene Di Lorenzo, Inc. v. A.

C. Dutton Lumber Co., 67 N.Y.2d 138, 141-43 (1986) (an entity served by secretary of state may

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move under CPLR 317 if they “did not personally receive notice of the summons in time to defend

and has a meritorious defense” and there is otherwise no need to demonstrate a reasonable excuse

under this provision).

Defendants also satisfy the requirements of CPLR 5015(a), which does require a reasonable

excuse for the default, because Defendants did not realize their current address was not on file with

the SOS at the time service was made. See Guerrero Aff. ¶ 17; Eugene Di Lorenzo, Inc., 67 N.Y.2d

at 142 (granting relief under CPLR 5015(a) because “corporate defendants served under Business

Corporation Law § 306 have frequently obtained relief from default judgments where they had a

wrong address on file with the Secretary of State, and consequently, did not receive actual notice

of the action in time to defend.”); Cohen v. Michelle Tenants Corp., 63 A.D.3d 1097, 1098 (2d

Dep’t 2009) (defendant corporation served via secretary of state entitled to vacatur of default where

defendant possessed a meritorious defense and there “was no evidence that the defendant was on

notice that an old address was on file with the Secretary of State”); Bev. Distribs. of Nev., Inc. v.

Schenley Indus., 155 A.D.2d 356, 357 (1st Dep’t 1989) (failure to update address with Secretary

of State such that actual notice did not occur is a “reasonable excuse” supporting vacatur of

default). Ultimately, Defendants should not be held responsible for Plaintiff’s incorrect mailing

address and it is otherwise well established that having the incorrect address on file with the

Secretary of State is a reasonable excuse for default under CPLR 5015(a).

Moreover, Defendants’ prompt action upon learning of this action conclusively

demonstrates that Defendants’ default was not willful. For example, under similar circumstances

courts have routinely excused a party’s default when the party promptly responded to their first

notice of the action. See, e.g., Abel v. Estate of Collins, 73 A.D.3d 1423, 1424-25 (3d Dep’t 2010)

(excusable default where inter alia efforts were made to vacate default as soon as they became

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aware); Price v. Polisner, 172 A.D.2d 422, 423 (1st Dep’t 1991) (where there was no willful

default and the defendant acts promptly to defend themselves unintentional default should be

vacated).

Additionally, Defendants’ default should be vacated because Defendants filed their answer,

rather than filing opposition to Plaintiff’s motion to renew, based on Plaintiff’s oral representation

Plaintiff would permit Defendants to file their Answer. See DiIorio v. Antonelli, 240 A.D.2d 537,

537 (2d Dep’t 1997) (denying plaintiff’s motion to enter default pursuant to CPLR 3215 because

“[t]he record clearly reflect[ed] that both parties had entered into an oral stipulation to extend the

defendant’s time to answer, and that the defendant relied upon such stipulation” and the “record

[wa]s inconclusive as to whether there was an agreed-upon due date, and the defendant’s brief

delay in [responding] was neither intentional nor serious enough to prejudice the plaintiff’s

prosecution of his lawsuit”); Leemilt’s Petroleum v. Pub. Storage, 193 A.D.2d 650, 650 (2d Dep’t

1993) (“a party is precluded from invoking CPLR 2104 to avoid an oral stipulation if it appears

that the stipulation was made and that the adverse party relied upon it.”); Volin v. City Beach

Catering Corp., 166 A.D.2d 583, 584 (2d Dep’t 1990) (“[w]hile the record is inconclusive as to

whether a formal stipulation extending the defendant’s time to answer was ever executed, it is clear

that such a stipulation was made, and that the parties relied upon it.”). Equities therefore favor

vacatur of the default because Defendants justifiably relied on Plaintiff’s representation

Defendants would be permitted to file their Answer.

Finally, permitting Defendants to enter their answer and defend the claims against them

would not result in any prejudice to Plaintiff. Any claim otherwise is belied by the fact Plaintiff

waited over two years to renew their motion for default undermining any claim to urgency they

might have.

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B. Defendants Have a Meritorious Defenses to the Complaint

In addition to demonstrating a lack of notice of the action until June 3, 2022 and a

reasonable excuse for their default, Defendants also have a meritorious defense to Plaintiff’s

premises liability claims. See Guerrero Aff. ¶ 18; Exhibit 1.

Plaintiff alleges “[t]hat on April 15, 2015, while delivering mail into mailboxes for the

United States Postal Service, to the building located at 2018 Third Avenue a/k/a 188 East 111th

Street, County of New York, City and State of New York, a bulletin/wall board encased in glass

above the mailboxes suddenly dislodged from the wall and hit me.” See Exhibits A & C.

However, the Premises identified by Plaintiff in her Complaint is entirely owned and operated by

105th Street and 111th Street has never had any ownership interest, control or operational authority

over the Premises. See Guerrero Aff. ¶ 13.

Therefore, 111th Street has an absolute and complete defense to Plaintiff’s claims insofar

as 111th Street cannot not be held liable for conditions at a property it does not own or control. See

e.g., Gomez by DeJesus v. Walton Realty Assocs., 258 A.D.2d 307, 308 (1st Dep’t 1999) (“An out-

of-possession owner who has relinquished control over the premises will not be held liable for

subsequent injuries resulting from dangerous conditions on the premises.”). This goes well beyond

the necessary prima facie showing that 111th Street’s defense has “potential merit.” Polir

Construction Inc. v. Etingin, 297 A.D.2d 509, 512 (1st Dep’t 2002).

Likewise, since 105th Street first received notice of this action on June 3, 2022, it has

investigated Plaintiff’s claims by inter alia speaking with the superintendent of the Premises at the

time of the alleged incident and reviewing relevant records. See Guerrero Aff. ¶¶ 15-16. Despite

the investigation, Defendants have been unable to locate any evidence that the incident occurred,

any evidence that the bulletin/wall board ever fell off the wall, any evidence that the bulletin/wall

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board at the Premises required repairs at any time, or any evidence of complaints concerning the

“bulletin/wall board” before or after the incident. Id. Therefore, 105th Street has an absolute

defense to Plaintiff’s claims insofar as they did not create or have any notice of the alleged

condition which caused Plaintiff’s injury. See e.g., Singh v. United Cerebral Palsy of New York

City, Inc., 72 A.D.3d 272, 275 (1st Dep’t 2010) (“A property owner is subject to liability for a

defective condition on its premises if a plaintiff demonstrates that the owner either created the

alleged defect or had actual or constructive notice of it.”); Roche v. New York City Hous. Auth., 58

Misc. 3d 1228(A), at *8 (N.Y. Sup. Ct. 2018) (where Plaintiff did not notice the alleged dangerous

condition prior to her incident and there is no evidence of any prior relevant complaints “any

finding that the condition had been visible and apparent for a sufficient time prior to plaintiff's

accident to permit defendant to discover and remedy it would be speculative.”); Monsanto v.

Target Corp., 2018 NY Slip Op 30303(U), at *4 (Suffolk Cty. Sup. Ct. Feb. 7, 2018) (summary

judgment granted to defendant where “the affidavits of defendant’s employees and the deposition

testimony of [defendant] establish[ed] that prior to the incident no similar injuries occurred at the

subject display and no one had ever complained about the display.”).

Therefore, Defendants possess meritorious defenses to Plaintiff’s claims which, together

with their lack of notice of this action and reasonable excuse for default, justifies vacatur of the

default judgment pursuant to CPLR 317 and CPLR 5015(a).

C. The Court Should Deem Defendants’ Answer Timely Filed

In addition to satisfying the standard for excusing a default, the circumstances in this matter

which are described above also warrant deeming Defendants’ Answer filed June 9, 2022 timely

nunc pro tunc pursuant to CPLR 2004 and 3012(d). See CPLR 2004 (“Except where otherwise

expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for

doing any act, upon such terms as may be just and upon good cause shown, whether the application
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for extension is made before or after the expiration of the time fixed”); CPLR 3012(d) (“Upon the

application of a party, the court may extend the time to appear or plead, or compel the acceptance

of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable

excuse for delay or default.”).

CONCLUSION

For the reasons set forth above, Defendants CDC EAST 105TH STREET REALTY, L.P.

and CDC 111TH STREET REALTY, L.P. requests that the Court issue an order (i) vacating the

default judgment as against Defendants pursuant to CPLR 317 and CPLR 5015(a); (ii) ordering

Defendants’ Answer deemed timely filed pursuant to CPLR 2004 and 3012(d) nunc pro tunc; and

(iii) awarding such other and further relief as the Court may deem just and proper.

DATED: September 30, 2022
New York, New York

Respectfully submitted,

PRYOR CASHMAN LLP

___________________________
John J. Giardino
Nicholas Saady
7 Times Square
New York, New York 10036
(212) 421-4100
jgiardino@pryorcashman.com
Attorneys for Defendants

CO-COUNSEL
HARRIS BEACH PLLC

By:_____________________________

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FILED: BRONX COUNTY CLERK 09/30/2022 08:36 PM INDEX NO. 30287/2017E
NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 09/30/2022

Stanley Goos, Esq.
Andre J. Major, Esq.
Attorneys for Defendant
CDC East 105th Street Realty, L.P.
100 Wall Street, 23rd Floor
New York, NY 10005
(212) 687-0100

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Case Info

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Kim A. Wilson Track Judge’s New Case

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September 30, 2022

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October 30, 2017

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Motion,Ex Parte: Sarah Rodriguez v. Cdc East 105th Street Realty, L.P., Cdc 111th Street Realty, L.P.

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