Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on December 30, 2024, under motion sequence number two, by Sharnay Smith (hereinafter the plaintiff) for an order pursuant to CPLR 5015(a)(1) vacating the dismissal of the instant action based on excusable default. The motion is unopposed.

On August 16, 2023, plaintiff commenced the instant for breach of contract and promissory estoppel against V. Barile, Inc., and Francis Millette Sr A/K/A Jose Dabas (hereinafter the defendants) by filing a summons and verified complaint with the Kings County Clerk's office (KCCO).

According to the verified complaint, the instant action was based on the following alleged facts. On September 10, 2020, the plaintiff initiated a lawsuit against defendants in the United States District Court for Eastern District of New York. The parties participated in mediation on September 14, 2021. A final agreement memorializing the terms was entered into by the parties on February 22, 2022. Pursuant to the agreement, defendants jointly agreed to pay plaintiff $150,000.00. The parties agreed that these payments would be paid out over a period of 2.5 years. Relying upon the February 22, 2022, agreement, the parties filed a Stipulation of Dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i) on March 31, 2022. Plaintiff promised to release her claims against defendants in consideration for $150,000 in payment from defendants. The defendants defaulted on their payments.

The defendants have neither appeared nor interposed an answer to the instant action.

On January 29, 2024, the plaintiff filed a motion pursuant to CPLR 3215 seeking leave to enter a default judgment against the defendants based on their failure to appear or answer the verified complaint.

By order issued on May 21, 2024, the court granted plaintiff's motion for a default judgment against defendants in the amount of $79,000. The order also stated that an inquest would be made by submission for an assessment of reasonable attorney's fees and that the submission was due by July 30, 2024.

On November 19, 2024, the court issued a decision and order stating the following facts. The matter was scheduled for an inquest on the above date. When the matter was called, the plaintiff was not ready to proceed. On that basis the matter was dismissed without prejudice.

Plaintiff's instant motion papers include a notice of motion, an affirmation in support of attorney's fees, and three exhibits labeled A through C. Exhibit A is an email to the court inquiring whether an in-person appearance was required. Exhibit B is a copy of the court's order granting a default judgment for nonappearance. Exhibit C is a copy of counsel's time log.

CPLR 2221(a)(1) provides, inter alia, that any motion for leave to renew or reargue a prior motion shall be made to the judge who signed the order deciding the prior motion, unless that judge is unable to hear the motion , except that: if the order was made upon a default such motion may be made, on notice, to any judge of the court (See Grossman v. Composto-Longhi, 96 AD3d 1000, 1002 [2d Dept 2012] citing Doscher v. Doscher, 54 AD3d 890, 891 [2d Dept 2008]; see also Siegel, NY Prac. § 253, at 433 [4th ed.]).

The instant motion arises from a court order dated June 10, 2024, which stated, in part: "An inquest will be made by submission for an assessment of reasonable attorney's fees." Plaintiff's counsel filed a Note of Issue on August 19, 2024, and the inquest was scheduled for November 19, 2024. On October 22, 2024, plaintiff's counsel emailed the court to inquire whether an in-person appearance was required or if submission via NYSCEF would suffice. The court responded on October 28, 2024, stating: "There is no need to appear. All relevant papers should be uploaded to NYSCEF."

On November 12, 2024, plaintiff's counsel e-filed a memorandum of law and an [*2]affirmation in support of the motion for attorney's fees in the amount of $31,905.00. Counsel did not appear in person for the November 19, 2024, inquest. Subsequently, the court issued an Order dated November 29, 2024, dismissing the matter without prejudice due to the nonappearance. On December 30, 2024, plaintiff's counsel filed a notice of motion seeking to vacate the dismissal based on the alleged failure to appear.

The order dismissing the instant action was issued by a different judge. Since the order was based on the plaintiff's alleged default in appearing, the matter did not to be referred back to the judge who issued the dismissal order, and this court may decide the matter in accordance with CPLR 2221(a)(1).

Plaintiff has moved pursuant to CPLR 5015(a)(1), to vacate the order dated November 19, 2024, which was issued due to the plaintiff's failure to appear.

CPLR 5015(a)(1) provides, in relevant part, that:

"The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of: (1) excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry."

To prevail on a motion to vacate a default under CPLR 5015(a)(1), the moving party must establish both a reasonable excuse for the default and the existence of a potentially meritorious claim or defense. (See Nationstar Mtge., LLC v. Mandel, 208 AD3d 668, 669; Natanel v. Plaza Ins. Co., 200 AD3d 890, 891; Berganza v. Pecora, 192 AD3d 743; Board of Mgrs. of Harborview Condominium v. Goodman, 189 AD3d 1529.)

Whether a reasonable excuse exists is a discretionary determination that must be made by the court based on all relevant factors, including the extent of the delay, potential prejudice to the opposing party, willfulness, and the strong public policy favoring resolution of cases on the merits (See Mtag Cust for Mtag Caz Cr. NY, LLC v. County of Nassau, 191 AD3d 662, 663, 664, quoting Harcztark v. Drive Variety, Inc., 21 AD3d 876). Notably, CPLR 2005 allows courts to accept law office failure as a reasonable excuse, provided it is supported by a detailed and credible explanation (Bank of Am., N.A. v. Murjani, 199 AD3d 630, 631).

Here, plaintiff's counsel has submitted a detailed and credible explanation for the default, citing a misunderstanding stemming from instructions received from the court. In support, counsel has submitted an email exchange (NYSCEF Doc No. 39) with a court representative that corroborates the explanation. Counsel has also demonstrated the existence of a potentially meritorious claim, as evidenced by the verified complaint. Given the credible explanation for the default and the existence of a potentially meritorious claim, the court grants the motion to vacate the default.

Furthermore, the plaintiff's evidentiary submission fully supported the request for attorney's fees in the amount of $31,905.00

The motion by plaintiff for an order pursuant to CPLR 5015(a)(1) vacating the dismissal is granted and the plaintiff is awarded attorney's fees in the amount of $31,905.00

The foregoing constitutes the decision and order of this court.