This action comes before me on a motion for default judgment. Plaintiff AM Landscaping Corp. ("AM") initially commenced this case by summons and complaint, verified on November 21, 2023 ^[FN1] and filed that day with the Albany County Clerk. The complaint is for breach of contract against defendants Ermionne Clement and A.J.W. Carribean Restaurant, and seeks payment of $150,000 for renovation work, including labor and materials that it performed on defendant's restaurant (Complaint ¶¶ 1-7). AM alleges that despite its demand for payment, defendants have failed to pay the outstanding balance owed for construction, plumbing, electrical, painting, and sewer-related work (id.).

Attached to the verified complaint is a document from AM that purports to be a "New Contract," dated March 9, 2023, and addressed to Ermionne Clement (Complaint, Ex A). It itemizes work to be performed for restaurant remodeling that totals $263,000 (id.). According to the complaint, on or about March 9, 2023 plaintiff entered into this remodeling contract with defendants and performed the work "in a responsible and professional fashion" (id. ¶¶ 10-12). Due to defendants' alleged failure to pay the demanded balance, plaintiff seeks damages in the [*2]amount of $40,000, representing "the fair market value of the materials, labor and services provided" (id. ¶¶ 14-15). The complaint also sets forth a claim for consequential damages in the amount of $110,000 for unidentified "lost work opportunities" (id. ¶ 16).

In accordance with CPLR 3025, AM filed an amended complaint ^[FN2] as of right on December 5, 2023 that corrected the corporate defendant's name by indicating that it is a limited liability company, and the name in the caption was thus changed to A.J.W. Carribean Restaurant, LLC ("AJW") (Amended Complaint ¶ 3). The allegations in the amended complaint otherwise mirror that in the November 21 verified complaint, without the verification (id.). According to the affidavits of service in the Court record, copies of the "Summons and Complaint with Notice of Electronic Filing" were personally served on December 13, 2023 on defendant Clement, individually, and as the authorized agent for service of process for defendant AJW (NYSCEF Doc. No. 4).

On February 21, 2024, defendants filed an answer through their counsel, Charles Assini, Esq.^[FN3] , and plaintiff filed an RJI on April 24, seeking a preliminary conference.^[FN4] Then, the Clerk of the Court received a letter from Mr. Assini's wife dated May 9 indicating that he had been hospitalized, and "it was unknown if he will ever be able to practice law again." The letter requested that his cases be postponed until his clients could obtain new counsel.

After receiving and reviewing the letter, I issued an order dated August 27, 2024, denoted as "Notice to Defendants" (NYSCEF Doc. No. 6 ["August 27 Notice" or "Notice"]), advising the parties that the family of Mr. Assini had notified the Court that, due to a severe health condition, Mr. Assini was unable to proceed with his representation in this case (August 27 Notice at 1). The Notice further directed defendants to arrange for new legal counsel to appear on their behalf by October 15, 2024, and in the case of Clement, to advise the Court if she chose to continue pro se by this same date (id.). The Notice stated that failure to comply with this directive would result in defendants being "deemed in default" (id. [emphasis in original]). This order also stayed the proceedings in this action until October 15, 2024, to afford defendants an opportunity to find new counsel, and directed AM to serve a copy of the August 27 Notice on defendants at 18 Wolf Road, Albany, New York 12205 on or before September 6, 2024, by "registered mail, return receipt requested and by first class mail" (id.).

According to its affidavit of service, on August 28, 2024, AM served the Notice on defendants (NYSCEF Doc No. 8). However, as of October 15, 2024, neither defendant had arranged for counsel to appear on its behalf, and Clement did not advise the Court that she would [*3]appear pro se. As a result, both defendants were deemed to be in default at that time pursuant to the Notice. Approximately three months later, on January 28, 2025, AM moved for default judgment (Attorney's Affirmation in Support of Motion for Default Judgment of Jerrold W. Miles, Esq., dated January 15, 2025 ["Miles Aff"] ¶ 2). Given that neither defendant complied with the Court's August 27, Order ^[FN5] , plaintiff asserted that they were now both in default and requested judgment in the amount of $150,000 (id. ¶¶ 12-14). As factual support for the motion, AM included a copy of what it refers to as the "Verified Complaint" that was served on defendants on December 13, 2023 (id. ¶¶ 7-9, Exs 1-2). This document consists of both the initial verified complaint filed on November 21, 2023, with the amended complaint filed on December 5, 2023 annexed thereto, followed by plaintiff's verification, dated November 21, 2023 (id., Ex 1).

Defendant, now appearing through counsel, sought an extension of time to respond by letter dated February 19, which application was granted. Ms. Clement has now submitted her own affidavit in opposition to the motion. Defendants contend that AM failed to timely move for a default judgment within a year of the defendant's default as required under CPLR 3215(c) (Affidavit in Opposition to Motion for Default Judgment of Ermionne Clement, sworn to on February 25, 2025 ["Clement Aff"] ¶ 3). Although Clement concedes that she was served with a summons and complaint in this action, she states that she was never served with the "amended" complaint and that no affidavit was ever filed evidencing its service ^[FN6] (id. ¶ 4).

Clement also concedes that she received the August 27 Notice, but argues that such was not served via "registered mail", as plaintiff utilized "certified mail, return receipt requested", which was not in compliance with the August 27 Notice (id. ¶ 5). Defendants further argue that the December 5, 2023 amended complaint was somehow filed more than 20 days after the initial complaint — which was filed on November 21, 2023 — and, therefore, was a nullity in accordance with CPLR 3025(a) (Clement Aff ¶ 7). Finally, Clement contends that the default motion cannot be supported by the unverified amended complaint (id. ¶ 8).

As for a "meritorious defense" to the complaint, Clement asserts that she never signed the contract that is attached to plaintiff's pleading (id. ¶ 10). She admits that she agreed to have plaintiff perform the renovation work on her restaurant, but denies any knowledge as to why plaintiff quit the renovation project before it was finished — which she contends required her to hire additional contractors and pay for materials to complete the work (id. ¶¶ 11-12). In addition, along with defendants' opposition papers, defendants filed a verified answer, asserting general denials and ten affirmative defenses repeating and expanding on the arguments raised in Clement's affidavit (NYSECF Doc. No. 18). In particular, the answer states that plaintiff "owes a refund of monies paid for work not performed and left unfinished," including: "1) Electric, 2) [*4]Fire Alarm System, 3) chicken hood, 4) plumbing for grease trap, 5) Fire Extinguisher System, 6) Piping, 7) Suppression System, 8) Piping Installation of Protex Systems," along with a number of other alleged shortcomings (Answer, Seventh Affirmative Defense). It does not, however, assert any counterclaims.^[FN7] But as a sworn document submitted with defendant's opposition papers, I may consider it as setting forth the basis for the defenses that defendants would raise.

To secure a default judgment, a plaintiff must demonstrate proof of service on the defendants; their failure to respond to the complaint; and the facts that support plaintiff's claim based on an affidavit from someone with personal knowledge (see CPLR 3215[f-g];Barbetta v Facchini, 2025 NY Slip Op 01204, *1 [2d Dept March 5, 2025]; HSBC Bank, N.A. v Betts, 67 AD3d 735, 736 [2d Dept 2009]). In addition, plaintiff must show proof of mailing of the default motion (see 333 Cherry LLC v Northern Resorts, Inc., 66 AD3d 1176, 1178 [3d Dept 2009]).

Here, AM has demonstrated its prima facie entitlement to a default judgment, in accordance with CPLR 3215. Plaintiff properly served defendants with a copy of the summons and both the verified complaint and the amended complaint setting forth the debt owed for renovation work, and the August 27 Notice (Miles Aff, Ex 1). Following defendants being deemed to be in default on October 15, 2024, AM also provided timely notice of the application for default judgment, and supported its application with evidence of defendant's failure to respond to the complaint, which includes a copy of the verified complaint establishing the material facts of defendants' failure to pay plaintiff for the renovation work it performed (id.; see also Triangle Properties 2, LLC v Narang, 73 AD3d 1030, 1032 [2d Dept 2010] ["A verified complaint can be used as the affidavit of the facts constituting the claim"]). The fact that the amended complaint was not verified does not change the fact that plaintiff has submitted a sworn document setting forth the facts underling the claim.

In order to successfully oppose the motion for default judgment, in the absence of evidence proving that no default occurred, defendants must generally "demonstrate a reasonable excuse for the delay and a potentially meritorious defense to the action" (see Nowakowski v Broadway Stages, 179 AD3d 822, 823 [2d Dept 2020]). In their submissions before me, defendants have not articulated such an excuse. The only argument they make concerns the illness of prior counsel, which occurred before the August 27 Notice that gave rise to the default (see Clement Aff ¶ 13).

Moreover, while defendants point to various alleged procedural defects in the motion, none of their arguments in this regard hold water. Initially, the motion for default judgment was filed on January 28, 2025, following defendants being deemed to be in default on October 15, 2024 in accordance with the August 27 Notice. Thus, the motion was brought within a year of [*5]defendant's default as required under CPLR 3215[c] (see Chase Home Finance LLC v Morris, 235 AD3d 263 [2d Dept 2025] [to avoid dismissal of complaint under CPLR 3215, plaintiff must take proceedings for the entry of default judgment within one year of the defendant's default]). As for the defendant's claim of non-service, the process server's affidavits are evidence of service of the Summons and Complaint on both defendants on December 13, 2023 — which Clement does not deny. Instead, she claims not to have been served with any document identified as an "amended complaint" (Clement Aff ¶ 4), a statement that is technically true as the amended complaint in this action, which was filed on December 5, 2025, was not denoted as being an "amended" complaint. However, Clement's "bare and unsubstantiated denial of receipt [is] insufficient to rebut the presumption of proper service" (see U.S. Bank N.A. v Telford, 153 AD3d 881, 881—882 [2d Dept 2017]; see also Astraea NYNY LLC v Ganley, 214 AD3d 528, 528-529 [1st Dept 2023] ["Defendant's conclusory denial that he was not served as alleged in the properly executed affidavit of service of plaintiff's process server is insufficient to rebut the presumption of service created by the affidavit"]).

Further, Clement has not submitted a copy of the complaint that she received, and merely states "upon information and belief" that no affidavit of service was filed reflecting service of a document entitled "amended complaint." But according to plaintiff's moving papers, the documents personally served on Clement and AJW on December 13, 2024 included both the verified complaint and the amended complaint — and such has not been denied by defendants (Miles Aff ¶¶ 7-9, Exs 1-2; Clement Aff ¶ 4). In any event, whether or not she received the amended complaint is not relevant to her default in this action, which took place because she did not timely seek counsel following the August 27 Notice. Finally, although my order directed the use of "registered mail" to serve that document, plaintiff's use of certified mail, return receipt requested did not prejudice defendants, and the use of certified mail will not invalidate the service of the notice where the served party acknowledges actual receipt, but fails to promptly object to the use of certified mail (see Rower v West Chamson Corp., 210 AD2d 7 [1st Dept 1994]). Under such circumstances, "any defect in service is of no legal consequence" (4261 Realty Holding LLC v DB Real Estate Assets II, LLC, 40 Misc 3d 1229[A], *2 [District Court, Nassau County 2013]).

As a result, I find that the August 27 Notice was properly served on defendants and they are now in default for failing to appear in this action by October 15, 2024. They have proffered no other specific excuse for that delay in appearing between the time that their default was deemed to have occurred and their submission seeking an extension of time to respond to the motion on February 19. The question is: does that failing require the entry of a default in this case?

The caselaw generally indicates that a valid excuse is a prerequisite to preventing entry of default (see Wally v Leatherstocking Healthcre, LLC [3d Dept 2010] [where defendant "did not establish a reasonable excuse for an untimely answer . . .the court should not have compelled plaintiff to accept the late answer"]). But that rule is not hard and fast. For one thing, "the sufficiency of the excuse is not as significant where the default is only a short period" (see Pizzarotti, LLC v. CabGram Dev., LLC, 219 AD3d 1352, 1353 [2d Dept. 2023]). Moreover, courts have the inherent power to excuse an unexplained default "in the interest of justice" (id. [internal citations and quotations omitted]; Wade v Village of Whitehall, 46 AD3d 1302 [3d Dept [*6]2007] [defendant's "unexplained default does not preclude vacatur because Supreme Court has an inherent power to vacate an order in the interest of justice"]; Slate Advance v Saygan Global Steel, Ltd., 206 AD3d 782, 783 [2d Dept 2022] ["[A] party is not necessarily required to establish a reasonable excuse in order to be entitled to vacatur in the interest of justice"]).^[FN9] For a variety of reasons, the interests of justice, and a balancing of the factors repeatedly cited in the appellate caselaw as warranting denial of a default motion are present here. For those reasons, I will deny plaintiff's motion.

In particular, this is not a case where the defendants did not respond to the complaint. Rather, they secured counsel and timely filed an answer. That counsel then had to withdraw through no fault of the defendants and under circumstances where he could not communicate with them at the time of withdrawal. Ultimately, I sent out the Notice, and it indicated — albeit during a time defendants were unrepresented — that they would be "deemed" in default if they did not get a new attorney. They did not follow that order until this motion was brought, when they did respond. But given this history, this is clearly not a case where the default was "intentional or part of a pattern of neglect" (see Pizzarotti, LLC v. CabGram Dev., LLC, 219 AD3d 1352, 1353 [2d Dept. 2023]).

Further, both parties have sought to argue the merits of this motion on what appears to be a mistaken understanding of the background. As noted (see supra n 3), neither alludes to the fact that the defendants actually filed an answer before counsel withdrew. This is not entirely surprising, since Mr. Assini did not participate in e-filing, and thus any counsel coming to the case cold (or in the case of plaintiff's counsel, returning to the case after months of delay), cannot be blamed for being unaware of the crucial procedural steps that are not disclosed on the electronic file.

Moreover, defendants have made a sufficient showing of a meritorious defense. Specifically, Clement denies that the parties ever had a contract, contests that she signed off on plaintiff's estimate, asserts that plaintiff "was paid" for at least some of the work, and (in her verified answer filed with the motion) lists numerous tasks that she says were not performed (see David Sanders, P.C. v. Sanders, Architects, 140 AD2d 787, 789 [3d Dept 1988] [reviewing proposed answer along with defendant's' affidavit to determine if there was meritorious defense]). To make a showing of merit, defendants are only required to make a prima facie showing of legal merit, and need not establish a defense as a matter of law (see id.), Under this standard, defendants' submissions are sufficient to meet that standard.

In sum, I am faced with a case where defendants initially answered, were faced by some unusual and complicated circumstances resulting from counsel's illness, after a relatively limited period of default (four months) responded to the present motion, and presented facially meritorious defenses. In addition, plaintiff has not shown any prejudice from the default. Under these circumstances, I find the words of the Third Department applicable here:

"Given the questions of fact as to merit, the brief delay, the lack of intention on defendant[s'] part to default, the failure of plaintiff to demonstrate any prejudice [*7]attributable to the delay and the policy preference in favor of resolving disputes on the merits . . . defendants' untimeliness should [be] excused in this instance" (Kostun v Gower, 61 AD3d 1307 [3d Dept 2009]).

Finally, I note that the difference made by the outcome l of this motion is relatively minor in the context of this case. While a default results in an admission by defendant of all traversable allegations in the complaint, "an allegation of damage is not a traversable allegation and, therefore, a defaulting defendant does not admit the plaintiff's conclusion of damages but may, at an inquest, offer proof in mitigation of damages if it involves circumstances intrinsic to the transactions at issue in the plaintiff's complaint" (see Amusement Bus. Underwriters v. American Intl. Group, 66 NY2d 878, 880 [1985] [internal quotation and citation omitted]). Thus, unless the default is for a sum certain, an inquest must be conducted at which damages are determined, and in which defendants can fully participate (see General Elec. Technical Services Co., Inc. v Perez, 156 AD2d 781, 783 [3d Dept 1989]; see also CPLR 3215[b]). This case clearly does not concern a sum certain, which is only the case when there "can be no dispute as to the amount due, as in actions on money judgments and negotiable instruments" (see General Elec. Technical Services Co., Inc. v Perez, 156 AD2d 781, 784 [3d Dept 1989]). Moreover, given that the disputes apparent from the record of this motion appear largely to relate to damages (what payments were made, what work was performed, etc.), granting the motion would not resolve the central matters at issue, but would require an inquest, the conduct of which would require numerous complicated determinations as to which issues were conceded by the default and which were not. In any event, given the factors delineated above, I find entry of a default judgment is not appropriate in this case.

This leaves one last technical issue: defendants have filed an untimely answer, but have not sought leave to file it in response to the motion, except to ask in Clement's affidavit that "the case be allowed to proceed on its merits" (Clement Aff at 4). But there was an answer filed in this case, albeit one essentially deemed struck by defendants' default in responding to the August 27 Notice. Further, where an application for default has been denied, the Court may sua sponte deem a late answer to be timely filed (see Morales v American United Transportation, Inc., 214 AD3d 415, 416 [1st Dept 2023] [denying unopposed default judgment motion after answer was rejected as untimely; "[i]n view of the foregoing, and this State's preference for resolving controversies on the merits, the interests of justice warranted an exercise of discretion in excusing defendants' delay in answering the complaint and sua sponte deeming the late answer timely filed"]).

The question here is whether it is appropriate to reinstate the answer initially filed, or whether it is the new answer that should properly be interposed. Since the issue has not been addressed, the parties should be prepared to discuss it at the preliminary conference scheduled below.

Accordingly, it is hereby

ORDERED that AM Landscaping's motion for default judgment is denied; and it is further

ORDERED that a preliminary conference shall take place on April 24, 2025 at 1:30 p.m.

This constitutes the Decision & Order of the Court. This Decision & Order is being [*8]electronically filed with copies e-mailed to counsel. The e-filing of this Decision and Order shall not constitute notice of entry under CPLR Rule 2220, and counsel is not relieved from the applicable provisions of that Rule respecting to filing and service of Notice of Entry.

1. Notice of Motion and Attorney's Affirmation in Support of Motion for Default Judgment of Jerrold W. Miles, Esq., dated January 15, 2025, with Exhibits annexed thereto.

2. Affidavit in Opposition to Motion for Default Judgment of Ermionne Clement, sworn to on February 25, 2025, with Exhibits annexed thereto, including Defendant's Answer.

3. Answer dated February 21, 2024.