Preview
FILED: ERIE COUNTY CLERK 12/06/2019 12:29 PM INDEX NO. 813024/2018
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 12/06/2019
STATE OF NEW YORK
SUPREME COURT ::COUNTY OF ERIE
SINATRA & COMPANY REDEVELOPMENT, LLC,
SUNRISE ESTATES OF WNY, LLC, and
BETTER BUFFALO PROPERTIES II, LLC
Plaintiffs, MEMORANDUM OF LAW IN
SUPPORT OF MOTION TO
VACATE DEFAULT JUDGMENT
vs.
Index No.: 813024/2018
RUBY CARE LLC, and
1205 DELAWARE AVENUE REALTY, LLC,
Defendants.
Defendants'
This memorandum of law is submitted in support of motion to vacate a default
judgment entered March 5, 2019 against the same.
STATEMENT OF FACTS
The procedural and factual backgrounds are laid out in detail in the Affirmation of JULIE M.
Defendants'
BARGNESI, Esq. As relevant to thismemorandum, Plaintiffs filed a claim with insurance
Defendants'
carrier for damages allegedly caused by the failure of sewer line. Based upon an
independent engineering report, the carrier, Guide One, made a settlement offer to Plaintiffs for
$11,508.58. Plaintiffs never responded to this offer.
While the carrier waited for a response, Plaintiffs initiated the instant action and served
Defendants with a summons and complaint by service on the Secretary of State on or about September
28, 2018. Copies of the summons and complaint were forwarded to Guide One on or about October
15, 2018. Alan Gray, LLC was responsible for the administration of claims for Guide One. The
summons and complaint were forwarded to Alan Gray employee James Grundy. Mr. Grundy failed to
assign counsel to represent Defendants in the action, directly leading to their subsequent default.
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Defendants received no further notices regarding the action until they received notice of entry of the
default judgment more than five months later, on or about March 6, 2019.
As set forth below, vacatur of the default judgment entered against Defendants is warranted
and is aligned with the strong public policy concern in deciding controversies on their merits.
ARGUMENT
First and foremost, a party may move to have a default judgment against itvacated on the
ground of excusable default ifthe motion is made within one year of the party being served a copy of
the entered judgment. CPLR § 5015(a)(1). Defendants were mailed notices of the entered default
judgment against them on March 6, 2019. Defendants are statutorily permitted to move to have the
default vacated until March 6, 2020.
"A party seeking to vacate an order or judgment on the ground of excusable default must offer
defense."
a reasonable excuse for its default and a meritorious Wells Fargo Bank, N.A. v. Dysinger,
149 A.D.3d 1551, 1552 (4th Dep't 2017); see Calaci v. Allied Interstate, Inc., 108 A.D.3d 1127, 1128
(4th Dep't 2013). "The determination whether the moving party's excuse is reasonable lieswithin the
court."
sound discretion of the Vogt v. Eberhardt, 163 A.D.3d 1514, 1515 (4th Dep't 2018). Further,
vacating the default is consistent with "the strong public policy in favor of resolving cases on the
merits."
Calaci, at 1128.
I. DEFENDANTS HAVE PROVIDED EVIDENCE OF A
REASONABLE EXCUSE FOR THEIR DEFAULT,
WARRANTING VACATUR OF THE DEFAULT
JUDGMENT.
Prior to 1983, the Court of Appeals that, as a matter of law, law office failure was not a
reasonable excuse to vacate a default. Eaton v. Equitable Life Assur. Soc. Of U.S., Inc.,56 NY2d 900
(1982). However, the Legislature expressly overruled this holding in 1983 with the passage of CPLR
2
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2005, which restored judicial discretion when evaluating law office failure as a reasonable excuse for
default.
Courts, in their discretion, have consistently found misconduct of former employees to
constitute law office failure.
Additionally, ithas long been held that office failures of an insurance carrier are akin to law
(ISt
office failures. Goldman v. Cotter, 10 AD3d 289 Dept 2004) (paralegal's misconduct by never
filing opposition papers constituted law office failure resulting in default. Vacated); Navarro v. A.
(18t
Trenkman Estate, Inc., 279 AD2d 257 Dept 2001) (Office manager's wrongful acts, including
failure to filepapers, constituted valid excuse for plaintiff's failure to appear); Polir Constrc. v. Etingin,
(ISt
297 AD2d 509 Dept 2002) (replacement of associates at plaintiff's counsel's law firm was
(ISt
excusable law office failure); Solowli v. Otis El. Co., 260 AD2d 226 Dept 1999) (misconduct of
former paralegal in plaintiff'scounsel's law office was reasonable excuse forplaintiff's default); Dean
v. Dean, 2016 NY Slip Op 50449(U) (Sup Ct, Monroe County 2016) (law office employee failing to
serve amended order constituted law office failure).
"akin"
Further, it has long been held that failures of an insurance carrier are to law office
failures. Dodge v. Commander, 18 AD3d 943 (3d Dept 2005) ("This is adequate proof of a failure by
the insurance broker or its agent, which, being akin to law office failure, is a reasonable excuse for
default"); Murphy v. D.V. Waste Control Corp., 124 AD2d 573 (2d Dept 1986) ("...explanation
defendants'
proffered for the delay was the negligence of the insurance broker, which is akin to a law
office failure").
The Fourth Department has also held an insurance carrier's office failure to be a reasonable
excuse for the purposes of excusing a default. The defendants in Vogt were served with a summons
and complaint for a negligence action and the defendants forwarded the same to their insurance carrier,
Nationwide. Id., at 1514. The claims specialist with Nationwide determined that the defendant was
entitled to defense and indemnification but "the claims specialist'inadvertently neglected to assign
3
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defendants."
counsel to represent Ld., at 1515. The Fourth Department, upholding the lower court's
decision, held "[w]e conclude that Nationwide's inadvertent failure to assign counsel to defendants is
default."
a reasonable excuse for their I_st
The Defendants in the instant case have provided evidence establishing a reasonable excuse
for their default. SEE FLAHERTY AFF'D. Defendants were aware of the claim Plaintiffs filed with
their carrier, Guide One. Guide One investigated the filed claim with the commissioning of an
independent engineering report. Based upon this report, an offer of $11,508.58 dollars extended to
Plaintiffs. It can be surmised that Guide One and Plaintiffs disagreed on the value of the claim by the
fact that Plaintiffs failed to respond to the offer and instead initiated this action seeking at least
$93,637.77, as stated in the complaint.
Guide One demonstrated an interest in defending the action on the merits by doing its due
diligence investigating the claims with an independent engineering report, making a settlement offer,
and forwarding the summons and complaint to Alan Gray to manage the claim once litigation was
initiated. The summons and complaint were forwarded to James Grundy, an employee at Alan Gray.
Mr. Grundy was responsible for assigning counsel to defend the action but for unknown reasons failed
to do so or to inform any other employees of Alan Gray of the action and/or the need to assign counsel
to represent Defendants.
Shortly thereafter, Mr. Grundy's employment with Alan Gray was terminated. Mr. Grundy's
wrongful misconduct in failing to assign counsel to represent Defendants went unnoticed until
Defendants received notice of entry of the default judgment. Additionally, Mr. Grundy's wrongful
Defendants'
misconduct was the but-for cause of default in appearing.
Caselaw in New York has long recognized that the wrongful acts of law firm employees are a
law office failure and qualify as a reasonable excuse for a party's default in appearing. Further, New
"akin"
York recognizes the failures of an insurance carrier office are to law office failure and can be a
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reasonable excuse as well. Logically, it is well within this Court's discretion to find the wrongful
Defendants'
misconduct of Alan Gray's employee, Mr. Grundy, to be a reasonable excuse for default.
II. DEFENDANTS HAVE PROVIDED EVIDENCE OF A
MERITORIOUS DEFENSE, WARRANTING VACATUR
OF THE DEFAULT JUDGMENT.
Defendants have also provided evidence establishing a potentially meritorious defense. In
assessing the claims alleged by Plaintiffs, Guide One commissioned Foit-Albert Associates,
Architecture, Engineering and Surveying, P.C. (hereinafter "Foit-Albert"), a professional corporation
Plaintiffs'
providing architecture, engineering, and surveying services, to inspect the property and
Plaintiffs'
investigate allegations.
Leigh Martin, a New York State-licensed Professional Engineer employed by Foit-Albert,
visited and inspected the property on June 2, 2017. Plaintiffs and their attorney were present during
this inspection. Plaintiffs claimed damages to four distinct areas of their property and apartment
building (collectively "the Property"): (1) the collapsed driveway, (2) the pedestrian sidewalk, steps,
and stoop of the front entrance of the building, (3) the exterior staircase on the rear of the building, and
(4) water damage in the basement of the building. Based upon his inspection and statements made by
Plaintiffs, Martin concluded that Defendant's sewer linewas not the cause of the damage as alleged by
Plaintiffs.
Plaintiffs' Defendants'
alleged their driveway was damaged by failed sewer line that ran under
the driveway. Martin concluded that there was a line failure under the driveway causing itdamage, but
Plaintiffs' Defendants'
it was caused by roof drain collector pipe failing, and not sewer line. The
Plaintiffs' Plaintiffs'
roof drain pipe collected storm water and ran underneath driveway. This line
Defendants' Plaintiffs'
connected to the top of sewer line where the alleged failure occurred. line
Defendants'
carried only storm water whereas line was a combination line, meaning itcarried storm
Plaintiffs'
water and sewerage. Martin concluded it was the line that failed and detached from
Defendants' Plaintiffs'
sewer line, based upon statements and representations and his inspection. This
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Plaintiffs'
detachment would have caused storm water from failed line to wash soil away through
Defendants'
now-exposed sewer line. This washing away of the soil would have compromised the
integrity of the driveway, causing the resulting damage to the driveway.
Plaintiffs also submitted invoices for repairs to the front of the Property. Plaintiffs told Martin
that the failed connection caused damage to the pedestrian sidewalk along the front of the property and
Plaintiffs'
to the stairs and stoop to the front entrance of building. Plaintiffs stated this caused them to
fully replace the concrete sidewalk, stairs,and stoop.
Martin found there was a great distance between these replaced elements and the site of the
failed connection under the driveway. Additionally, Martin noticed there was an "absence of signs of
distress"
between the replacements and the failed line connection. If the failed connection caused
damage to the stairs, stoop, and sidewalk, itis inconceivable that the property between these two points
Plaintiffs'
would have escaped allharm. And even though indicated photographs and video were taken
of the property before, during, and after the repairs, none were provided to Martin during his inspection.
Based on the above, Martin concluded the replacement of the stairs, stoop, and sidewalk were
betterments to the property and not attributable to the failed connection under the driveway.
Plaintiffs also claimed the failed connection damaged the exterior staircase, and itsfoundation,
Plaintiffs'
on the rear of building. Plaintiffs stated the damage was so extensive they were required to
demolish the existing staircase and fully replace it.The old rear exterior staircase consisted of a steel
structure and steel foundation.
As part of Martin's inspection, he found the rear of the building "faces the predominant wind
York."
direction in Western New . Martin concluded this meant the steel staircase was constantly and
chronically exposed to wind-driven rain and snow. This would have required the Plaintiffs to address
accumulated ice and snow on the rear staircase during th'ewinter months. Martin surmised Plaintiffs
most likely treated the stairs,in part, with salt to melt any snow or ice. Martin also found the rear of
Plaintiffs'
property was slanted toward the building. This slant to the property and the exposure to
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Plaintiffs'
driving rain and snow would cause storm waters to naturally pond along the back of building
and the foundation ofthe exterior stairs.Martin acknowledged that the stairs and their foundation were,
in fact,likely deteriorated, but Martin concluded this"was indeed a repercussion of exposure to ponded
event."
water over an extended period of time and not from a single Martin noted, assuming Plaintiffs
properly maintained the rear staircase as statutorily required, this ponded water would have been salt
laden, accelerating the deterioration of the stairs.
Additionally, Martin found the failed connection to be roughly sixty feet from the rear staircase
and was at a lower elevation than the staircase and the basement. Martin stated "it is not a valid belief
failure]"
that leakage from [this traveled that distance in an upward direction causing the type of
damage alleged in a single event.
It is worth noting, that Plaintiffs stated to Martin building code enforcement officers were
Plaintiffs'
threatening to shutter building because the rear exterior staircase was so deteriorated itwas
a safety hazard to the building's tenants. Plaintiffs informed Martin that the stairs had to be fully
replaced in order to avoid having their building shutdown.
Plaintiffs alleged to Martin significant water damage to the interior of the building's basement
and attributed this to the failed connection. During his inspection, Martin found the rear staircase
included an exposed, sunken stairwell that led down to an entrance directly into the building's
basement. Plaintiffs stated to Martin that the rear basement stairwell had no drainage and that storm
water would pond in the exposed stairwell. Martin found that this lack of proper drainage, and the fact
the rear of the property was slanted towards the building as established above, would exacerbate the
ponding of water in the rear basement stairwell. Martin concluded this would likely cause the water to
Plaintiffs'
accumulate high enough to begin seeping into the basement through the door entrance.
maintenance employee admitted to Martin the ponding of water in the stairwell causing flooding into
failure."
the basement through the doorway "was a constant occurrence prior to the alleged sewer
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Additionally, as stated above, the basement was at a higher elevation than the failure location
and about sixty feet away. The flooding in the basement, and the resulting damage, being caused by
leakage from thispoint is highly improbable.
Plaintiffs'
Martin's findings clearly demonstrate that allegations that the failed sewer
connection caused damage to (1) the collapsed driveway, (2) the pedestrian sidewalk, steps, and stoop
of the front entrance of the building, (3) the exterior staircase on the rear of the building, and (4) water
damage in the basement of the building are meritless.
The claimed damages to the front sidewalk, steps and stoop and to the rear exterior staircase
Plaintiffs'
are the most outlandish claims and form the majority of default judgment award.
In the case of the front sidewalk, steps and stoop, The Plaintiffs claim that the water from the
failed connection site travelled a significant distance to the front of the building, irreparably damaging
the concrete elements to the point where they needed to be fullyreplaced, at great expense. However,
in a stroke of miraculous fortune, the leaking water traveled in such a manner that the property directly
between these two points escaped unscathed, unlike the concrete elements which suffered complete
devastation.
In the case of the rear exterior staircase, Plaintiffs claim that a single event of leaking water
underground caused the steel staircase to rot away to the point where building inspectors were
threatening to shutdown their building for tenant safety. Defendants do not argue, rather concede, that
the rear staircase was a threat to tenant safety. Plaintiffs submitted as one of their exhibits a photo of
the rear staircase and itsdilapidated condition. A copy of the photo is attached to this motion as
EXHIBIT I. However, itis not clear to Defendants how a single leaking event, underground, caused
Defendants'
such overwhelming damage to a steel staircase several feet above ground. Rather, itis
position that Plaintiffs seized an opportunity to wrongfully push the substantial costs of a new staircase
on to another party to avoid having their building shutdown and losing a significant amount money
tenants'
from their monthly rents.
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CONCLUSION
Defendants'
The wrongful acts by insurance carrier's employee were the but-for cause of the
failure"
default by Defendants. Such an "insurance carrier office has been found by courts in New
York to be a reasonable excuse for default, akin to a law office failure. Further, the Defendants have
made a timely motion and presented a potentially meritorious defense. The determination of whether
to vacate a default judgment lies within the sound discretion of the Court. As such, itis respectfully
requested that this Court vacate the default of RUBY CARE LLC and 1205 DELAWARE AVENUE
REALTY, LLC on the grounds of excusable default pursuant to CPLR § 5015(a)(1) and have this
action resolved on itsmerits.
Dated: December 6, 2019
Buffalo, New York
BARGNESI BRITT, PLLC
Julie . Bargnesi, Esq.
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FILED: ERIE COUNTY CLERK 12/06/2019 12:29 PM INDEX NO. 813024/2018 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 12/06/2019 STATE OF NEW YORK SUPREME COURT ::COUNTY OF ERIE SINATRA & COMPANY REDEVELOPMENT, LLC, SUNRISE ESTATES OF WNY, LLC, and BETTER BUFFALO PROPERTIES II, LLC Plaintiffs, MEMORANDUM OF LAW IN SUPPORT OF MOTION TO VACATE DEFAULT JUDGMENT vs. Index No.: 813024/2018 RUBY CARE LLC, and 1205 DELAWARE AVENUE REALTY, LLC, Defendants. Defendants' This memorandum of law is submitted in support of motion to vacate a default judgment entered March 5, 2019 against the same. STATEMENT OF FACTS The procedural and factual backgrounds are laid out in detail in the Affirmation of JULIE M. Defendants' BARGNESI, Esq. As relevant to thismemorandum, Plaintiffs filed a claim with insurance Defendants' carrier for damages allegedly caused by the failure of sewer line. Based upon an independent engineering report, the carrier, Guide One, made a settlement offer to Plaintiffs for $11,508.58. Plaintiffs never responded to this offer. While the carrier waited for a response, Plaintiffs initiated the instant action and served Defendants with a summons and complaint by service on the Secretary of State on or about September 28, 2018. Copies of the summons and complaint were forwarded to Guide One on or about October 15, 2018. Alan Gray, LLC was responsible for the administration of claims for Guide One. The summons and complaint were forwarded to Alan Gray employee James Grundy. Mr. Grundy failed to assign counsel to represent Defendants in the action, directly leading to their subsequent default. 1 of 9 FILED: ERIE COUNTY CLERK 12/06/2019 12:29 PM INDEX NO. 813024/2018 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 12/06/2019 Defendants received no further notices regarding the action until they received notice of entry of the default judgment more than five months later, on or about March 6, 2019. As set forth below, vacatur of the default judgment entered against Defendants is warranted and is aligned with the strong public policy concern in deciding controversies on their merits. ARGUMENT First and foremost, a party may move to have a default judgment against itvacated on the ground of excusable default ifthe motion is made within one year of the party being served a copy of the entered judgment. CPLR § 5015(a)(1). Defendants were mailed notices of the entered default judgment against them on March 6, 2019. Defendants are statutorily permitted to move to have the default vacated until March 6, 2020. "A party seeking to vacate an order or judgment on the ground of excusable default must offer defense." a reasonable excuse for its default and a meritorious Wells Fargo Bank, N.A. v. Dysinger, 149 A.D.3d 1551, 1552 (4th Dep't 2017); see Calaci v. Allied Interstate, Inc., 108 A.D.3d 1127, 1128 (4th Dep't 2013). "The determination whether the moving party's excuse is reasonable lieswithin the court." sound discretion of the Vogt v. Eberhardt, 163 A.D.3d 1514, 1515 (4th Dep't 2018). Further, vacating the default is consistent with "the strong public policy in favor of resolving cases on the merits." Calaci, at 1128. I. DEFENDANTS HAVE PROVIDED EVIDENCE OF A REASONABLE EXCUSE FOR THEIR DEFAULT, WARRANTING VACATUR OF THE DEFAULT JUDGMENT. Prior to 1983, the Court of Appeals that, as a matter of law, law office failure was not a reasonable excuse to vacate a default. Eaton v. Equitable Life Assur. Soc. Of U.S., Inc.,56 NY2d 900 (1982). However, the Legislature expressly overruled this holding in 1983 with the passage of CPLR 2 2 of 9 FILED: ERIE COUNTY CLERK 12/06/2019 12:29 PM INDEX NO. 813024/2018 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 12/06/2019 2005, which restored judicial discretion when evaluating law office failure as a reasonable excuse for default. Courts, in their discretion, have consistently found misconduct of former employees to constitute law office failure. Additionally, ithas long been held that office failures of an insurance carrier are akin to law (ISt office failures. Goldman v. Cotter, 10 AD3d 289 Dept 2004) (paralegal's misconduct by never filing opposition papers constituted law office failure resulting in default. Vacated); Navarro v. A. (18t Trenkman Estate, Inc., 279 AD2d 257 Dept 2001) (Office manager's wrongful acts, including failure to filepapers, constituted valid excuse for plaintiff's failure to appear); Polir Constrc. v. Etingin, (ISt 297 AD2d 509 Dept 2002) (replacement of associates at plaintiff's counsel's law firm was (ISt excusable law office failure); Solowli v. Otis El. Co., 260 AD2d 226 Dept 1999) (misconduct of former paralegal in plaintiff'scounsel's law office was reasonable excuse forplaintiff's default); Dean v. Dean, 2016 NY Slip Op 50449(U) (Sup Ct, Monroe County 2016) (law office employee failing to serve amended order constituted law office failure). "akin" Further, it has long been held that failures of an insurance carrier are to law office failures. Dodge v. Commander, 18 AD3d 943 (3d Dept 2005) ("This is adequate proof of a failure by the insurance broker or its agent, which, being akin to law office failure, is a reasonable excuse for default"); Murphy v. D.V. Waste Control Corp., 124 AD2d 573 (2d Dept 1986) ("...explanation defendants' proffered for the delay was the negligence of the insurance broker, which is akin to a law office failure"). The Fourth Department has also held an insurance carrier's office failure to be a reasonable excuse for the purposes of excusing a default. The defendants in Vogt were served with a summons and complaint for a negligence action and the defendants forwarded the same to their insurance carrier, Nationwide. Id., at 1514. The claims specialist with Nationwide determined that the defendant was entitled to defense and indemnification but "the claims specialist'inadvertently neglected to assign 3 3 of 9 FILED: ERIE COUNTY CLERK 12/06/2019 12:29 PM INDEX NO. 813024/2018 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 12/06/2019 defendants." counsel to represent Ld., at 1515. The Fourth Department, upholding the lower court's decision, held "[w]e conclude that Nationwide's inadvertent failure to assign counsel to defendants is default." a reasonable excuse for their I_st The Defendants in the instant case have provided evidence establishing a reasonable excuse for their default. SEE FLAHERTY AFF'D. Defendants were aware of the claim Plaintiffs filed with their carrier, Guide One. Guide One investigated the filed claim with the commissioning of an independent engineering report. Based upon this report, an offer of $11,508.58 dollars extended to Plaintiffs. It can be surmised that Guide One and Plaintiffs disagreed on the value of the claim by the fact that Plaintiffs failed to respond to the offer and instead initiated this action seeking at least $93,637.77, as stated in the complaint. Guide One demonstrated an interest in defending the action on the merits by doing its due diligence investigating the claims with an independent engineering report, making a settlement offer, and forwarding the summons and complaint to Alan Gray to manage the claim once litigation was initiated. The summons and complaint were forwarded to James Grundy, an employee at Alan Gray. Mr. Grundy was responsible for assigning counsel to defend the action but for unknown reasons failed to do so or to inform any other employees of Alan Gray of the action and/or the need to assign counsel to represent Defendants. Shortly thereafter, Mr. Grundy's employment with Alan Gray was terminated. Mr. Grundy's wrongful misconduct in failing to assign counsel to represent Defendants went unnoticed until Defendants received notice of entry of the default judgment. Additionally, Mr. Grundy's wrongful Defendants' misconduct was the but-for cause of default in appearing. Caselaw in New York has long recognized that the wrongful acts of law firm employees are a law office failure and qualify as a reasonable excuse for a party's default in appearing. Further, New "akin" York recognizes the failures of an insurance carrier office are to law office failure and can be a 4 4 of 9 FILED: ERIE COUNTY CLERK 12/06/2019 12:29 PM INDEX NO. 813024/2018 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 12/06/2019 reasonable excuse as well. Logically, it is well within this Court's discretion to find the wrongful Defendants' misconduct of Alan Gray's employee, Mr. Grundy, to be a reasonable excuse for default. II. DEFENDANTS HAVE PROVIDED EVIDENCE OF A MERITORIOUS DEFENSE, WARRANTING VACATUR OF THE DEFAULT JUDGMENT. Defendants have also provided evidence establishing a potentially meritorious defense. In assessing the claims alleged by Plaintiffs, Guide One commissioned Foit-Albert Associates, Architecture, Engineering and Surveying, P.C. (hereinafter "Foit-Albert"), a professional corporation Plaintiffs' providing architecture, engineering, and surveying services, to inspect the property and Plaintiffs' investigate allegations. Leigh Martin, a New York State-licensed Professional Engineer employed by Foit-Albert, visited and inspected the property on June 2, 2017. Plaintiffs and their attorney were present during this inspection. Plaintiffs claimed damages to four distinct areas of their property and apartment building (collectively "the Property"): (1) the collapsed driveway, (2) the pedestrian sidewalk, steps, and stoop of the front entrance of the building, (3) the exterior staircase on the rear of the building, and (4) water damage in the basement of the building. Based upon his inspection and statements made by Plaintiffs, Martin concluded that Defendant's sewer linewas not the cause of the damage as alleged by Plaintiffs. Plaintiffs' Defendants' alleged their driveway was damaged by failed sewer line that ran under the driveway. Martin concluded that there was a line failure under the driveway causing itdamage, but Plaintiffs' Defendants' it was caused by roof drain collector pipe failing, and not sewer line. The Plaintiffs' Plaintiffs' roof drain pipe collected storm water and ran underneath driveway. This line Defendants' Plaintiffs' connected to the top of sewer line where the alleged failure occurred. line Defendants' carried only storm water whereas line was a combination line, meaning itcarried storm Plaintiffs' water and sewerage. Martin concluded it was the line that failed and detached from Defendants' Plaintiffs' sewer line, based upon statements and representations and his inspection. This 5 of 9 FILED: ERIE COUNTY CLERK 12/06/2019 12:29 . PM INDEX NO. 813024/2018 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 12/06/2019 Plaintiffs' detachment would have caused storm water from failed line to wash soil away through Defendants' now-exposed sewer line. This washing away of the soil would have compromised the integrity of the driveway, causing the resulting damage to the driveway. Plaintiffs also submitted invoices for repairs to the front of the Property. Plaintiffs told Martin that the failed connection caused damage to the pedestrian sidewalk along the front of the property and Plaintiffs' to the stairs and stoop to the front entrance of building. Plaintiffs stated this caused them to fully replace the concrete sidewalk, stairs,and stoop. Martin found there was a great distance between these replaced elements and the site of the failed connection under the driveway. Additionally, Martin noticed there was an "absence of signs of distress" between the replacements and the failed line connection. If the failed connection caused damage to the stairs, stoop, and sidewalk, itis inconceivable that the property between these two points Plaintiffs' would have escaped allharm. And even though indicated photographs and video were taken of the property before, during, and after the repairs, none were provided to Martin during his inspection. Based on the above, Martin concluded the replacement of the stairs, stoop, and sidewalk were betterments to the property and not attributable to the failed connection under the driveway. Plaintiffs also claimed the failed connection damaged the exterior staircase, and itsfoundation, Plaintiffs' on the rear of building. Plaintiffs stated the damage was so extensive they were required to demolish the existing staircase and fully replace it.The old rear exterior staircase consisted of a steel structure and steel foundation. As part of Martin's inspection, he found the rear of the building "faces the predominant wind York." direction in Western New . Martin concluded this meant the steel staircase was constantly and chronically exposed to wind-driven rain and snow. This would have required the Plaintiffs to address accumulated ice and snow on the rear staircase during th'ewinter months. Martin surmised Plaintiffs most likely treated the stairs,in part, with salt to melt any snow or ice. Martin also found the rear of Plaintiffs' property was slanted toward the building. This slant to the property and the exposure to 6 6 of 9 FILED: ERIE COUNTY CLERK 12/06/2019 12:29 PM INDEX NO. 813024/2018 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 12/06/2019 Plaintiffs' driving rain and snow would cause storm waters to naturally pond along the back of building and the foundation ofthe exterior stairs.Martin acknowledged that the stairs and their foundation were, in fact,likely deteriorated, but Martin concluded this"was indeed a repercussion of exposure to ponded event." water over an extended period of time and not from a single Martin noted, assuming Plaintiffs properly maintained the rear staircase as statutorily required, this ponded water would have been salt laden, accelerating the deterioration of the stairs. Additionally, Martin found the failed connection to be roughly sixty feet from the rear staircase and was at a lower elevation than the staircase and the basement. Martin stated "it is not a valid belief failure]" that leakage from [this traveled that distance in an upward direction causing the type of damage alleged in a single event. It is worth noting, that Plaintiffs stated to Martin building code enforcement officers were Plaintiffs' threatening to shutter building because the rear exterior staircase was so deteriorated itwas a safety hazard to the building's tenants. Plaintiffs informed Martin that the stairs had to be fully replaced in order to avoid having their building shutdown. Plaintiffs alleged to Martin significant water damage to the interior of the building's basement and attributed this to the failed connection. During his inspection, Martin found the rear staircase included an exposed, sunken stairwell that led down to an entrance directly into the building's basement. Plaintiffs stated to Martin that the rear basement stairwell had no drainage and that storm water would pond in the exposed stairwell. Martin found that this lack of proper drainage, and the fact the rear of the property was slanted towards the building as established above, would exacerbate the ponding of water in the rear basement stairwell. Martin concluded this would likely cause the water to Plaintiffs' accumulate high enough to begin seeping into the basement through the door entrance. maintenance employee admitted to Martin the ponding of water in the stairwell causing flooding into failure." the basement through the doorway "was a constant occurrence prior to the alleged sewer 7 of 9 FILED: ERIE COUNTY CLERK 12/06/2019 12:29 PM INDEX NO. 813024/2018 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 12/06/2019 Additionally, as stated above, the basement was at a higher elevation than the failure location and about sixty feet away. The flooding in the basement, and the resulting damage, being caused by leakage from thispoint is highly improbable. Plaintiffs' Martin's findings clearly demonstrate that allegations that the failed sewer connection caused damage to (1) the collapsed driveway, (2) the pedestrian sidewalk, steps, and stoop of the front entrance of the building, (3) the exterior staircase on the rear of the building, and (4) water damage in the basement of the building are meritless. The claimed damages to the front sidewalk, steps and stoop and to the rear exterior staircase Plaintiffs' are the most outlandish claims and form the majority of default judgment award. In the case of the front sidewalk, steps and stoop, The Plaintiffs claim that the water from the failed connection site travelled a significant distance to the front of the building, irreparably damaging the concrete elements to the point where they needed to be fullyreplaced, at great expense. However, in a stroke of miraculous fortune, the leaking water traveled in such a manner that the property directly between these two points escaped unscathed, unlike the concrete elements which suffered complete devastation. In the case of the rear exterior staircase, Plaintiffs claim that a single event of leaking water underground caused the steel staircase to rot away to the point where building inspectors were threatening to shutdown their building for tenant safety. Defendants do not argue, rather concede, that the rear staircase was a threat to tenant safety. Plaintiffs submitted as one of their exhibits a photo of the rear staircase and itsdilapidated condition. A copy of the photo is attached to this motion as EXHIBIT I. However, itis not clear to Defendants how a single leaking event, underground, caused Defendants' such overwhelming damage to a steel staircase several feet above ground. Rather, itis position that Plaintiffs seized an opportunity to wrongfully push the substantial costs of a new staircase on to another party to avoid having their building shutdown and losing a significant amount money tenants' from their monthly rents. 8 of 9 FILED: ERIE COUNTY CLERK 12/06/2019 12:29 PM INDEX NO. 813024/2018 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 12/06/2019 CONCLUSION Defendants' The wrongful acts by insurance carrier's employee were the but-for cause of the failure" default by Defendants. Such an "insurance carrier office has been found by courts in New York to be a reasonable excuse for default, akin to a law office failure. Further, the Defendants have made a timely motion and presented a potentially meritorious defense. The determination of whether to vacate a default judgment lies within the sound discretion of the Court. As such, itis respectfully requested that this Court vacate the default of RUBY CARE LLC and 1205 DELAWARE AVENUE REALTY, LLC on the grounds of excusable default pursuant to CPLR § 5015(a)(1) and have this action resolved on itsmerits. Dated: December 6, 2019 Buffalo, New York BARGNESI BRITT, PLLC Julie . Bargnesi, Esq. 9 9 of 9