In this action for, inter alia, breach of contract, plaintiff moves seeking an order granting it a default judgment against defendants FG-PH CORP. (FG) and WESTCHESTER FIRE INSURANCE COMPANY (Westchester). Plaintiff avers that despite being served with the summons and complaint, FG and Westchester have not answered. FG and Westchester separately cross-move seeking an order allowing them to interpose belated answers. Saliently, FG and Westchester aver that they have a meritorious defense to this action and a reasonable excuse for failing to timely interpose an answer. Plaintiff opposes Westchester's motion asserting, inter alia, that the delay in moving for an order to interpose a belated answer is inordinate.

For the reasons that follow hereinafter, plaintiff's motion is granted, in part, and Westchester and FG's cross-motions are denied.

The instant action is for breach of contract, quantum meriut, account stated, enforcement of a mechanic's lien, and for payment on a payment bond. The complaint, filed on December 11, 2023 and verified by plaintiff's principal, states that in April 2019, plaintiff, who is the business of providing electrical work and related materials executed an agreement with FG. Prior thereto, pursuant to a contract, in April 2019, FG was retained by nonparty BCET Housing Development Fund Corporation (BCET) to perform work at a property owned by BCET and located at 744 East Tremont Avenue, Bronx, NY (744). In connection with the work at 744, defendant BERKLEY INSURANCE COMPANY (Berkley) issued a payment bond, guaranteeing payment to FG and plaintiff for the work performed under the agreement between FG and BCET. Pursuant to the agreement between plaintiff and FG, in exchange for plaintiff's work at 744, FG would pay plaintiff $68,195. Plaintiff performed its work, which FG accepted, but was only partially paid. Thus, plaintiff is owed $48,195. On December 13, 2021, plaintiff filed a [*2]mechanic's lien against 744 for the sums due under the foregoing agreement. On September 22, 2022, BCET had Westchester, an insurance company issue a bond, thereby discharging the lien. Based on the foregoing, plaintiff interposes five causes of action. The first cause of action is against FG for breach of contract, wherein it is alleged that in failing to pay plaintiff all sums due under the agreement between it and FG, the latter breached the agreement. The second cause of action is against FG for quantum meruit, wherein it is alleged that FG is liable to pay plaintiff for the fair and reasonable value of its work. The third cause of action is against FG for account stated, wherein it is alleged that plaintiff sent FG invoices for all sums due to plaintiff which FG kept without objection. The fourth cause of action is for payment under the bond filed by Westchester discharging plaintiff's mechanic's lien, wherein it is alleged that since plaintiff has a duly filed lien, Westchester is required to satisfy the same. The last cause of action is for payment on a payment bond, wherein it is alleged that in connection with FG's work at 744, Berkley issued a payment bond, guaranteeing payment to FG and plaintiff and that, as such, Berkley is required to pay plaintiff all sums due for its work at 744.

On March 5, 2025, plaintiff's prior motion for identical relief was denied because in failing to submit working copies of its motion papers, it failed to comply with this Court's Part Rules.

Plaintiff's motion for the entry of a default judgment is granted, in part. Significantly, plaintiff demonstrates entitlement to the entry of a default judgment against FG on its cause of action for breach of contract and against Westchester on its cause of action for payment on the bond issued by it. Notably, albeit for different reasons, neither Westchester nor FG proffer a reasonable excuse for failing to timely answer.

Pursuant to CPLR § 3215[f], "[o]n any application for judgment by default, the applicant shall file proof of service of the summons and the complaint . . . and proof of the facts constituting the claim" (Pampalone v Giant Building Maintenance, Inc., 17 AD3d 556, 557 [2d Dept 2005] [Default judgment granted once plaintiff submitted proof that defendant was served with the summons and complaint and an affidavit of the facts constituting the claim.]; Andrade v Ranginwala, 297 AD2d 691, 691-692 [2d Dept 2002]). In the case of a an action commenced by a summons with notice, when a plaintiff establishes, inter alia, that a defendant failed to appear within twenty days of service thereof, is entitled to a default judgment (Keyes v McLaughlin, 49 AD2d 974, 975 [3d Dept 1975] ["Clearly a default as defined by CPLR 3215 (subd. [c]) occurs even though a bare summons is served" [internal quotation marks omitted].). Once the requisite showing has been made, a motion for a default judgment must be granted unless the defendant can establish a meritorious defense to the claims made, a reasonable excuse for the delay in interposing an answer, and that the delay in interposing an answer has in no way prejudiced the plaintiff in the prosecution of the case (Buywise Holding, LLC v Harris, 31 AD3d 681, 683 [2d Dept 2006]; Giovanelli v Rivera, 23 AD3d 616, 616 [2d Dept 2005]).

Pursuant to CPLR § 3215(a), "[i]f the plaintiff's claim is for a sum certain or for a sum which can by computation be made certain, application may be made to the clerk within one year after the default." Accordingly, if the damages sought are not for a sum certain or for an amount [*3]which can be made certain, a default judgment is only as to liability, where the defendant admits all traversable allegations in the complaint as to liability only (Rokina Optical Co., Inc. v Camera King, Inc., 63 NY2d 728, 730 [1984]; Arent Fox Kinter Plotkin & Kahn, PLLC v Gmbh, 297 AD2d 590, 590 [2d Dept. 2002]). A trial on inquest must be held wherein the defendant is afforded an opportunity to present and try a case in mitigation of damages (Rokina Optical Co., Inc. at 730; Arent Fox Kinter Plotkin & Kahn, PLLC at 590]). The term "sum certain" contemplates a situation where once liability has been established, "there can be no dispute as to the amount due, as in actions on money judgments and negotiable instruments" (Reynolds Securities, Inc. v Underwriters Bank and Trust Company, 44 NY2d 568, 572 [1978]).

With regard to establishing the merits of the claim, plaintiff may use an affidavit or a complaint verified by the plaintiff (Mullins v DiLorenzo, 199 AD2d 218, 220 [1st Dept 1993]; Gerhardt v J & R Salacqua Contr. Co., Inc., 181 AD2d 719, 720 [2d Dept 1992]). Additionally, plaintiff can also use deposition testimony (Empire Chevrolet Sales Corporation v Spallone, 304 AD2d 708, 709 [2d Dept 2003]); Ramputi v Timko Contracting Corp., 262 AD2d 26, 27 [1st Dept 1999]). While generally, a plaintiff cannot establish the merits of his or her claims using a complaint verified by an attorney (Deleon v Sonin & Genis, 303 AD2d 291, 292 [1st Dept 2003]); Juseinoski v Board of Education of the City of New York, 15 AD3d 353, 356 [2d Dept 2004]), a complaint verified by an attorney, where the attorney has personal knowledge of facts constituting the claim, is sufficient to establish the merits of a plaintiff's claim (Costello v Reilly, 36 AD3d 581, 582 [2d Dept 2007] ["Further, the plaintiffs' attempt to establish the merits of their claim on the basis of the verified complaint alone is insufficient since the complaint was verified by the plaintiffs' attorney rather than by the plaintiffs themselves."]; State Farm Mutual Automobile Insurance Company v Rodriguez, 12 AD3d 662, 663 [2d Dept 2004]; Richards v Lewis, 243 AD2d 615, 616 [2d Dept 1997]; Martin v Zangrillo, 186 AD2d 724, 724 [2d Dept 1992]). Moreover, an affirmation by an attorney cannot, as a matter of law, establish the merits of a claim (James v Hoffman, 158 AD2d 398, 398 [1st Dept 1990]; ["Thus, counsel's affirmation falls short of providing the required evidentiary facts, in admissible form, which would establish that the defaulting party has a meritorious claim."]; Becker Wrecking & Salvage Corp. v Pinebrook Const. Corp., 22 AD2d 976, 976 [3d Dept 1964]).

CPLR § 3215(c) states that

[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed. A motion by the defendant under this subdivision does not constitute an appearance in the action.

Thus, a party who fails to take a default within a year after said default could have been taken, has abandoned his case and the remedy is dismissal (Kay Waterproofing Corp. v Ray Realty Fulton, Inc., 23 AD3d 624, 625 [2d Dept 2005]; Geraghty v Elmhurst Hosp. Center of New York City Health and Hospitals Corp., 305 AD2d 634, 634 [2d Dept 2003]). Significantly, pursuant to CPLR § 320(a), generally "[a]n appearance shall be made within twenty [to thirty] days after service of the summons." In order to avoid dismissal under this section, a plaintiff must offer a reasonable excuse for the failure to timely move for a default and must also demonstrate the merits of the action (Truong v All Pro Air Delivery, Inc., 278 AD2d 45, 45 [1st Dept 2000]; [*4]LaValle v Astoria Construction & Paving Corp., 266 AD2d 28, 28 [1st Dept 1999]; State Farm Mutual Automobile Insurance Company v Rodriguez, 12 AD3d 662, 663 [2d Dept 2004]). Notably, in the absence of a motion seeking dismissal for the failure to timely seek a default, a court has the power to dismiss an action sua sponte (Perricone v City of New York, 62 NY2d 661, 563 [1984]; Winkelman v H & S Beer and Soda Discounts, Inc., 91 AD2d 660, 661 [2d Dept 1982]).

It is well settled that dismissal of an action pursuant to CPLR § 3215(c) is unavailable when "the plaintiff has manifested an intent not to abandon the case, to take steps to seek a judgment" within the one year period prescribed by CPLR §3215(c) (Citibank, N.A. v Kerszko, 203 AD3d 42, 50-51 [2d Dept 2022]; U.S. Bank, N.A. v Duran, 174 AD3d 768, 770 [2d Dept 2019]). Thus, even if a prior application for the entry of a default judgment was denied the mere fact that it was timely made precludes dismissal pursuant to CPLR § 3215(c) (Citibank, N.A. at 51; Mtge. Elec. Registration Sys., Inc. v Smith, 111 AD3d 804, 806 [2d Dept 2013] [Dismissal of the complaint pursuant to CPLR § 3215(c) upon plaintiff's renewed application for the entry of a default judgment was inappropriate where plaintiff's timely motion for the entry of a default judgment had been previously denied."]; Jones v Fuentes, 103 AD3d 853, 853 [2d Dept 2013] ["Here, the plaintiff's original motion for leave to enter a default judgment was made and denied without prejudice within one year after the defendant's default. Furthermore, under the circumstances of this case, the plaintiff demonstrated that she did not abandon the action."]). For purposes of CPLR § 3215(c), proceedings are taken even if a timely motion is withdrawn (Citibank, N.A. at 51; Aurora Loan Services, LLC v Colleluori, 170 AD3d 1097, 1099 [2d Dept 2019]), or if a timely application is made by Order to Show Cause and the court refuses to execute the same (Citibank, N.A. at 51; Brown v Rosedale Nurseries, Inc., 259 AD2d 256, 257 [1st Dept 1999] ["In concluding that plaintiffs had abandoned their complaint against defendant Rockefeller Center Properties because they had failed to take proceedings for the entry of judgment within one year after the default, the court failed to consider plaintiffs' order to show cause, brought within one year of defendant's default, before Justice Braun, seeking entry of a default judgment. Although Justice Braun did not sign that order to show cause, it has been recognized that as long as proceedings are being taken, and these proceedings manifest an intent not to abandon the case but to seek a judgment, the case should not be subject to dismissal" [internal citations and quotation marks omitted].).

Pursuant to CPLR § 320(a), a "defendant appears by serving an answer or a notice of appearance, or by making a motion which has the effect of extending the time to answer." Thus, upon the service of a complaint, a defendant appears by either filing an answer, a notice of appearance or by making a pre-answer motion pursuant to CPLR § 3211(a), which per CPLR § 3211(f), extends a defendant's time to appear (21st Mtge. Corp. v Raghu, 197 AD3d 1212, 1215 [2d Dept 2021]; Deutsche Bank Natl. Tr. Co. v Hall, 185 AD3d 1006, 1008 [2d Dept 2020]). A notice of appearance confers personal jurisdiction over a defendant and is the "equivalent of personal service of a summons upon him" (Natl. Loan Inv'rs, L.P. v Piscitello, 21 AD3d 537, 537 [2d Dept 2005]). A notice of appearance in lieu of an answer ought to be reserved for instances where the plaintiff's process was service of a summons with notice rather than a complaint (Deutsche Bank Natl. Tr. Co. at 1008). Significantly, the service of a notice of appearance in response to a complaint "does not absolve a defendant from complying with the [*5]time restrictions imposed by CPLR 320 (a) which govern the service of an answer or the making of a motion pursuant to CPLR 3211" (21st Mtge. Corp. at 1216; Deutsche Bank Natl. Tr. Co. at 1009-1010). Stated differently, "a defendant who serves a timely notice of appearance may nevertheless default in answering" (21st Mtge. Corp. at 1216; Deutsche Bank Natl. Tr. Co. at 1009-1010). This is because, while a notice of appearance satisfies CPLR § 320(a), "[t]he failure to interpose a timely answer constitutes a default in pleading, an independent default basis that is analytically 'distinct from a failure to appear'" (21st Mtge. Corp. at 1215). Accordingly, to avoid the entry of a default judgment, a defendant who files a notice of appearance should nevertheless serve an answer within 20 days after service of the complaint (Nationstar Mtge., LLC v Reitman, 198 AD3d 793, 794 [2d Dept 2021] [Court granted motion to enter a default judgment where although defendant served a notice of appearance, he did not serve an answer.]; Deutsche Bank Natl. Tr. Co. v Bararaky, 188 AD3d 1157, 1158 [2d Dept 2020]["Contrary to the defendant's contention, she defaulted in the action by failing to timely answer the complaint; filing a notice of appearance and appearing at settlement conferences did not cure her default."]; LaSalle Bank, N.A. v LoRusso, 155 AD3d 706, 706 [2d Dept 2017] [same]).

Additionally, in cases where an action is commenced by filing a summons with notice pursuant to CPLR § 305(2) ("If the complaint is not served with the summons, the summons shall contain or have attached thereto a notice stating the nature of the action and the relief sought, and, except in an action for medical malpractice, the sum of money for which judgment may be taken in case of default."), a defendant is nevertheless required to appear by notice pursuant to CPLR § 320(a) ("The defendant appears by serving an answer or a notice of appearance.") and CPLR § 3012(b) ("If the complaint is not served with the summons, the defendant may serve a written demand for the complaint within the time provided in subdivision (a) of rule 320 for an appearance. Service of the complaint shall be made within twenty days after service of the demand. Service of the demand shall extend the time to appear until twenty days after service of the complaint. If no demand is made, the complaint shall be served within twenty days after service of the notice of appearance.).

Generally, the entry of a default judgment is unwarranted where a defendant serves a notice of appearance and does not interpose an answer "where the complaint does not set forth any allegations that the [defendant is] required to defend against" (Tsionis v Eriora Corp., 123 AD3d 694, 696 [2d Dept 2014]).

In support of the instant motion, plaintiff submits several affidavits of service. The first affidavit evinces that on December 22, 2023, FG was served with the summons and complaint when copies of the foregoing documents were delivered to the New York State Secretary of State. The second affidavit evinces that on January 2, 2024, Westchester was served with the summons and complaint when copies of the foregoing documents were served upon the New York State Department of Finance, an agent authorized to accept service on Westchester's behalf.

Plaintiff also submits an affirmation of service, which indicates that on January 26, 2025, defendants were mailed an additional copy of the summons and complaint.

Plaintiff also submits an affidavit from Theodore Theodoropoulos (Theodoropoulos) , plaintiff's President, who reiterates the assertions in the complaint.

Based on the foregoing, plaintiff establishes entitlement to the entry of a default judgment [*6]against FG and Westchester.

As noted above, pursuant to CPLR § 3215[f], "[o]n any application for judgment by default, the applicant shall file proof of service of the summons and the complaint . . . and proof of the facts constituting the claim" (Pampalone at 557; Andrade at 691-692). Once the requisite showing has been made, a motion for a default judgment must be granted unless the defendant can establish a meritorious defense to the claims made, a reasonable excuse for the delay in interposing an answer, and that the delay in interposing an answer has in no way prejudiced the plaintiff in the prosecution of the case (Buywise Holding, LLC at 683; Giovanelli at 616). Pursuant to CPLR §3215(a), "[i]f the plaintiff's claim is for a sum certain or for a sum which can by computation be made certain, application may be made to the clerk within one year after the default."

Here, the record establishes that FG, a corporation, was duly served with the complaint when the same was delivered the New York State Secretary of State (CPLR § 311[a][1]["A business corporation may also be served pursuant to section three hundred six or three hundred seven of the business corporation law."]; Business Corporation Law § 306 ["Service of process on the secretary of state as agent of a domestic or authorized foreign corporation shall be made by personally delivering to and leaving with the secretary of state or a deputy, or with any person authorized by the secretary of state to receive such service, at the office of the department of state in the city of Albany, duplicate copies of such process together with the statutory fee, which fee shall be a taxable disbursement. Service of process on such corporation shall be complete when the secretary of state is so served."]). Moreover, Westchester, an insurance company, was duly served with the complaint when the same was delivered to the New York State Department of Finance (Insurance Law § 1212 (b) ["Service of process upon any such insurer in any proceeding in any court of competent jurisdiction may be made by serving the superintendent, any deputy superintendent, or any salaried employee of the department whom the superintendent designates for such purpose, all of whom shall have authority to accept such service pursuant to any such power of attorney."]).

Additionally, to the extent that CPLR § 3215(g)(4)(i) requires additional notice to defaulting defendants when they are corporations or limited liability companies served via the Secretary of State, the affirmation of additional service, evincing that on January 26, 2025 the summons and complaint were mailed to FG, establishes compliance therewith (id. ["When a default judgment based upon non-appearance is sought against a domestic or authorized foreign corporation which has been served pursuant to paragraph (b) of section three hundred six of the business corporation law, an affidavit shall be submitted that an additional service of the summons by first class mail has been made upon the defendant corporation at its last known address at least twenty days before the entry of judgment."]).

Thus, plaintiff establishes that FG and Westchester were duly served with the complaint.

In addition, with the complaint, verified by plaintiff's president, plaintiff establishes that the causes of action against FG and Westchester have merit.

As noted above, a plaintiff may use an affidavit or a complaint verified by the plaintiff to establish the merits of the claims in the complaint (Mullins at 220; Gerhardt at 720),

Here, with respect to FG, the complaint establishes that plaintiff's cause of action for breach of contract has merit.

The essential elements in an action for breach of contract "are the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of his or her contractual obligations, and damages resulting from the breach" (Dee v Rakower, 112 AD3d 204, 209 [2d Dept 2013]; Elisa Dreier Reporting Corp. v Global Naps Networks, Inc., 84 AD3d 122, 127 [2d Dept 2011]; Brualdi v IBERIA Lineas Aeraes de España, S.A., 79 AD3d 959, 960 [2d Dept 2010]; JP Morgan Chase v J.H. Elec. of NY, Inc., 69 AD3d 802, 803 [2d Dept 2010]; Furia v Furia, 116 AD2d 694, 695 [2d Dept 1986]). Unless expressly proscribed by the Statute of Frauds (General Obligations Law § 5-701), a contract or agreement need not be in writing (see generally McCoy v Edison Price, Inc., 186 AD2d 442, 442-443 [1st Dept 1992] [Alleged oral agreement which, by its terms, was to last for as long as defendant remained in business was incapable of performance within one year, rendering it voidable under Statute of Frauds.]; Karl Ehmer Forest Hills Corp. v Gonzalez, 159 AD2d 613, 613 [2d Dept 1990] ["An oral promise to guarantee the debt of another is barred by the Statute of Frauds."]).

In this case, the complaint alleges that plaintiff and FG executed an agreement whereby in exchange for plaintiff's electrical work, FG would pay plaintiff $68,195, that plaintiff performed under the agreement, and that in failing to pay plaintiff all sums due under the agreement, FG breached the same. Thus, plaintiff establishes the merits of its cause of action against FG for breach of contract.

Similarly, the complaint establishes that plaintiff has a meritorious cause of action against Westchester based on the bond Westchester issue to BCET in order to discharge the mechanic's lien filed by plaintiff in connection with its work at 744.

Pursuant to New York Lien Law § 3, a contractor who performs work at real property can assert a lien against the property if payment is not rendered for the work (id. ["A contractor, subcontractor, laborer, materialman, landscape gardener, nurseryman or person or corporation selling fruit or ornamental trees, roses, shrubbery, vines and small fruits, who performs labor or furnishes materials for the improvement of real property with the consent or at the request of the owner thereof, or of his agent, contractor or subcontractor, and any trust fund to which benefits and wage supplements are due or payable for the benefit of such laborers, shall have a lien for the principal and interest, of the value, or the agreed price, of such labor, including benefits and wage supplements due or payable for the benefit of any laborer, or materials upon the real property improved or to be improved and upon such improvement, from the time of filing a notice of such lien as prescribed in this chapter."]). Such lien must be filed with the County Clerk where the property at which the work performed is located (New York Lien Law § 4[1] ["The notice of lien must be filed in the clerk's office of the county where the property is situated."]). Notably, an owner against whose property a lien has been filed may discharge the same by procuring a bond (New York Lien Law § 19[4] ["Either before or after the beginning of an action by the owner or contractor executing a bond or undertaking in an amount equal to one hundred ten percent of such lien conditioned for the payment of any judgment which may be rendered against the property for the enforcement of the lien."]). Indeed, once discharged, in order for a plaintiff to recover on a bond discharging a mechanic's lien, it need only establish that it has a valid mechanic's lien. (Worlock Paving Corp. v Camperlino, 222 AD2d 1097, 1098 [4th Dept 1995]). Where a mechanic's lien on real property has been discharged by the filing of a security bond, a judgment in favor of the lienor in an action brought to enforce the lien, although not a judgment [*7]of foreclosure, is, nevertheless, a judgment against the property (id. at 1098). Indeed, because the mechanic's lien no longer attaches to the real property, "the judgment is against the property only as a matter of form. The decree may adjudge that the plaintiff has a good and valid lien for a specified amount, and that but for the filing of the bond the plaintiff would be entitled to a judgment of foreclosure" (id. at 1098).

Here, as noted above, the complaint states that a mechanic's lien was duly filed and thereafter discharged by a bond issued by Westchester. Thus, as against Westchester ^[FN1] , plaintiff establishes the existence of a meritorious cause of action.

Nothing submitted by Westchester precludes the entry of a default judgment against it.

In opposition to the instant motion and in support its cross-motion, Westchester submits an a affirmation by Sandra M. Koch (Koch), a Senior Claim Specialist of Surety Claims with Chubb, who states the following. Koch is responsible for responding to claims made on surety bonds issued by Westchester. On August 3, 2022, as a condition of the issuance of the bond by Westchester, BCET executed an agreement wherein BCET agreed to indemnify Westchester for all damages arising from and in connection with the bond. Thereafter, Westchester issued the bond which discharged the mechanic's lien filed by plaintiff against BCET. On January 12, 2024, after Koch received the summons and complaint in this action, Kotch contacted Anthony Lynch (Lynch) at BCET, providing him with the summons and complaint and asking that BCET assume Westchester's defense in this action. After sending Lynch several emails to inquire about Westchester's request, Koch indicated to Lynch that if BCET did not assume Westchester's defense in this action, it would retain counsel to represent it and, per the agreement, at BCET's expense. On January 23, 2024, Stephen Seltzer (Seltzer) of BCET indicated that BCET would be assuming Westchester's defense via Brian J. Markowitz (Markowitz), an attorney at Tater Krinsky & Drogin LLP. Seltzer provided a tender letter confirming the same and thereafter, per Markowitz'a request, Koch forwarded a copy of the summons and complaint to him. On April 3, 2024, Kotch contacted Markowitz to confirm that he was handling Westchester's defense and requested a copy of the answer interposed on Westchester's behalf. Markowitz indicated that he had not filed an answer and was instead communicating with plaintiff's counsel in an effort to resolve this action. Despite emails sent by Kotch to Marrkowitz in July and August 2024, Markowitz never responded. In December 2024, Koch received plaintiff's motion seeking the entry of a default judgment. Thereafter, on December 12, 2024, Koch forwarded a copy of the motion to Markowitz. On December 17, 2024, Markowitz confirmed that he was handling Westchester's defense and that he did "not believe that vacating any potential default would be an issue." By January 2025, Westchester had been named a defendant in four other actions initiated by plaintiff. Emails to Markowitz in January and February 2025 went unanswered. Because, by March 7, 2025, Markowitz had not responded to Westchester's inquiries, Westchester retained Chiesa Shahinian & Giantomasi PC to represent it in this action. Per Kotch, the delay in [*8]interposing an answer was Westchester's belief, based on BCET's tender letter, that Markowitz was defending and would continue to defend Westchester in this action.

Based on the foregoing, because Westchester's excuse for failing to answer is unreasonable as a matter of law, plaintiff's motion must be granted.

Here, Westchester's excuse for failing to interpose an answer is the Markowitz' failure to interpose a timely answer despite assurances that he would and Westchester's reliance on representations establishing the same.

The foregoing is no different than instances where a default is precipitated by the failure of an insurance company to timely act on behalf of its insured, which as matter of law constitutes a reasonable excuse for the entry of a default against a party (Schwartz v Port Imperial Ferry Corp., 197 AD3d 1057, 1057 [1st Dept 2021] ["Defendants demonstrated a reasonable excuse for their default, namely, that the senior legal adjuster of the third-party claims management company, who was responsible for informing the insurance broker and insurer about any actions commenced against defendants failed to take the appropriate action, and, consequently, defense counsel was never assigned."]; Heskel's W. 38th St. Corp. v Gotham Const. Co. LLC, 14 AD3d 306, 307 [1st Dept 2005] [Motion to vacate a default judgment granted when the court held defendants reason for failing to timely answer was excusable. The Court noted that "[e]xcusable delay is sufficiently established since the failure to forward the complaint to counsel prior to December 1, 2003 was concededly due to the inadvertence of the insurer."]; Rodgers v 66 E. Tremont Hgts. Hous. Dev. Fund Corp., 69 AD3d 510, 510-511 [1st Dept 2010] [The court vacated a default judgment when the record established that "upon receipt of a letter from plaintiff's counsel which contained a copy of the pleadings, defendant immediately forwarded the correspondence and pleadings to its insurer." The court further noted that "it was reasonable for defendant to believe that its insurer would take the appropriate action to appear and defend the action."]; Triangle Transp., Inc. v Markel Ins. Co., 18 AD3d 229 [1st Dept 2005] ["Moreover, defendant has satisfactorily shown a reasonable excuse for its failure to answer the complaint by adducing evidence, in admissible form, demonstrating that although it duly forwarded plaintiff's pleadings to its claims administrator, the pleadings were inadvertently mislaid or incorrectly filed and accordingly never assigned to counsel for handling. Defendant was unaware that the action had gone undefended until it received a notice of execution on the judgment. The requirements for vacatur of the default judgment having thus been met, defendant's motion was properly granted."]).

Here, however, while it would appear, as urged, that Westchester's reliance on Markowitz, to its detriment, constitutes a reasonable excuse for its default, the devil is in the details, and thus, a careful review of Koch's affidavit against the backdrop of prevailing applicable law warrants a different result.

A review of Koch's affidavit evinces, at worse, a pattern of willful neglect on Westchester's part, and at best, Westchester's failure to discern and/or realize that Markowitz was not adequately representing Westchester in this action thereby warranting that Westchester retain counsel much sooner than it did. To be sure, per Koch, BCET retained Markowitz to defend Westchester in January 2024. Despite attempts to communicate with Markowits soon thereafter, Koch did not hear from Markowitz until April 3, 2024, two months later, at which point Markowitz had not yet interposed an answer to this action on Westchester's behalf. Thereafter, [*9]despite multiple attempts to communicate with Markowitz that year, Koch did not hear from him until December 17, 2024, approximately eight months later. By that time, not only had Markowitz not filed an answer on Westchester's behalf, but despite assurances that he was working to settle this action, plaintiff had nonetheless filed a motion for the entry of a default judgment against Westchester. Despite the pending motion, Markowitz failed to respond to any of Kotch's multiple inquiries and it was not until March 19, 2025, three months later and almost two years after Markowitz had been retained to represent Westchester - during which period he did little to represent Westchester - that Westchester finally retained its own counsel.

On this record, the Court concludes that Westchester's reliance on Markowitz, the basis for its failure to answer, is unreasonable as matter of law. Instead, the record establishes that Westchester neglected to take appropriate action to defend itself in this action despite repeated and clear evidence that Markowitz, who consistently failed to maintain a line of communication, was, in fact, not adequately representing Westchester's interests, if at all (Dave Sandel, Inc. v Specialized Indus. Services Corp., 35 AD3d 790, 791 [2d Dept 2006] ["Under the circumstances presented in this case, the defendant's purported continued belief that its prior attorney was handling this case for it was unreasonable and, thus, does not excuse its default. Moreover, where, as here, there is a pattern of default and neglect, the negligence of the attorney is properly imputed to the client" (internal citations omitted).]; Roussodimou v Zafiriadis, 238 AD2d 568, 569 [2d Dept 1997] ["Moreover, the motion for a default judgment served upon the defendant specifically stated that the defendant had neither appeared nor answered the complaint. Thus, his continued belief that the attorney was handling the case for him was not reasonable."]; Gannon v Johnson Scale Co., 189 AD2d 1052 [3d Dept 1993] ["Defendant has failed to demonstrate that it had a reasonable excuse for its default. Supreme Court properly found defendant's excuse, that local counsel it retained failed to appear at the trial scheduled for May 17, 1990 without notice to defendant or its counsel, insufficient . Contrary to defendant's contention, this was not an isolated occurrence but rather followed a pattern of willful default and neglect" (internal citations omitted).]).

Indeed, on this record, reason and prudence required that Westchester retain its own counsel much sooner than it did since from the inception of Markowitz' representation, he was not timely and consistently communicating with Westchester via Kotch. Moreover, the fact that three months after Markowitz was retained and three months after Westchester had been served, he still had not interposed an answer and, apparently, had not obtained any written assurances that plaintiff would not seek to move for a default judgment. Thereafter, and despite the foregoing, Westchester continued to wait for Markowitz to take appropriate action despite his failure to communicate with it for a period of eight months, during which time, Markowitz failed to respond to Westchester's inquiries.

Based on the foregoing, Westchester's excuse is unreasonable insofar as its conduct was tantamount to neglect. Thus, plaintiff's motion against Westchester is granted.

With respect to FG, the instant motion is also granted.

Significantly, pursuant to a stipulation between all parties (NY St Cts Elec Filing [NYSCEF] Doc. 61 at 1-2]), plaintiff's motion and Westchester's cross-motion were adjourned to July 25, 2025. Nonetheless, on July 30, 2025, five days later, without permission or a request to adjourn plaintiff's motion, FG filed a cross-motion opposing plaintiff's motion and seeking leave [*10]to interpose a belated answer. Because FG's cross-motion violates CPLR § 2215, the same was not considered and as a result, neither was FG's opposition to plaintiff's motion.

Pursuant to CPLR § 2215, "[a]t least three days prior to the time at which the motion is noticed to be heard, or seven days prior to such time if demand is properly made pursuant to subdivision (b) of rule 2214,a party may serve upon the moving party a notice of cross-motion demanding relief, with or without supporting papers."). It is well settled that the failure to comply with CPLR § 2215 warrants denial of a cross-motion (D'Aniello v T.E.H. Slopes, Inc., 301 AD2d 556, 558 [2d Dept 2003] ["Furthermore, even if the Supreme Court vacated D'Aniello's default, the cross motions would have been untimely, as they did not afford D'Aniello an opportunity to respond. CPLR 2215 requires that a cross motion be served at least three days before the return date of the motion" (internal citations omitted)]; Moran v BAC Field Services Corp., 164 AD3d 494, 495-496 [2d Dept 2018] ["We agree with the Supreme Court's denial, as untimely, of the plaintiff's cross motion for leave to enter a default judgment against BAC, since the plaintiff failed to serve his cross motion within the time period required by CPLR 2215(b)."]; Matter of Briger's Estate, 95 AD2d 887, 888 [3d Dept 1983] ["Furthermore, the court's unwillingness to hear the supposed cross motion was fully justified, for respondent's papers were not only untimely served but failed to contain an explicit notice of cross motion as required by the 1980 amendment to CPLR 2215."]).

Here, insofar as FG filed it's cross-motion on NYSCEF on July 30, 2025, five days after plaintiff's motion and Westchester's cross-motion were fully submitted, the cross-motion was untimely, must therefore be denied, and any opposition to plaintiff's motion included therein cannot be considered.

Based on the foregoing, FG fails to oppose the instant motion and the same is granted on the first cause of action for breach of contract. To the extent that plaintiff seeks the entry of a default judgment against FG on its causes of action for quantum meruit and account stated, the application is denied as moot.

Westchester's motion seeking leave to file a belated answer is denied. Significantly, as noted above, Westchester fails to establish that its failure to timely interpose an answer in this action, insofar as premised upon its reliance that Markowitz was representing it, is, as a matter of law, an unreasonable excuse.

Pursuant to CPLR § 3012(d), a defendant seeking to interpose a belated answer should be granted such relief if he proffers a reasonable excuse for the failure to timely answer and demonstrates that the plaintiff won't be prejudiced by service of a late answer (id. ["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."]; Cirillo v Macy's, Inc., 61 AD3d 538, 540 [1st Dept 2009]; Jones v 414 Equities, LLC, 57 AD3d 65, 81 [1st Dept 2008]). "Supreme Court has broad discretion in gauging the sufficiency of an excuse proffered by a defendant who failed to serve a timely answer" (Cirillo at 540; Perellie v Crimson's Rest., 108 AD2d 903, 904 [2d Dept 1985]), and even a hardly overwhelming excuse will suffice, provided no prejudice results from the trial court's declination to grant plaintiff a default judgement (Jones at 81). Significantly, it is well [*11]settled that law office failure has been deemed a cognizable excuse for failing to timely interpose an answer (Venezia v City of New York, 280 AD2d 406, 406 [1st Dept 2001] ["Defendant's time to answer the amended complaint was properly extended upon a showing of a reasonable excuse for its failure to timely answer based on law office failure, and a meritorious defense."]; Matter of Estate of Ajamian, 225 AD2d 992, 993 [3d Dept 1996] ["Under the circumstances, we find no reason to disturb the court's determination that petitioner demonstrated a reasonable excuse for her default, namely, law office failure."]).

It is well settled that a defendant opposing a motion for a default judgment, while concomitantly seeking leave to interpose a belated answer, need not establish a meritorious defense to the action and need only establish a reasonable excuse for failing to timely answer (Cirillo at 540; Jones at 81; Arrington v Bronx Jean Company, Inc., 76 AD3d 461, 462 [1st Dept 2011]). This is significant because parties often argue that in opposing a motion for a default judgment, they need not establish that they have a meritorious defense. This, as noted above, is only true if a defendant seeks to oppose the motion for a default judgment at the same time it seeks to interpose a belated answer (Higgins v Bellet Construction Co., Inc., 287 AD2d 377, 377 [1st Dept 2001]; Silverio v City of New York, 266 AD2d 129, 129 [1st Dept 1999]; Cirillo at 540; Jones at 81; Arrington at 462). If, however, a defendant merely opposes a motion for a default judgment, then besides proffering a reasonable excuse for failing to answer, it must also establish the merits of its defense, and the absence of prejudice to the plaintiff (Buywise Holding, LLC at 683; Giovanelli at 616).

As noted above, pursuant to CPLR § 3012(d), a defendant seeking to interpose a belated answer should be granted such relief if he proffers a reasonable excuse for the failure to timely answer and demonstrates that the plaintiff will not be prejudiced by service of a late answer (id. ["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."]; Cirillo at 540; Jones at 81). It is well settled that a defendant opposing a motion for a default judgment, while concomitantly seeking leave to interpose a belated answer, need not establish a meritorious defense to the action and need only establish a reasonable excuse for failing to timely answer (Cirillo at 540; Jones at 81; Arrington at 462). If, however, a defendant merely opposes a motion for a default judgment, then besides proffering a reasonable excuse for failing to answer, it must also establish the merits of its defense, and the absence of prejudice to the plaintiff (Buywise Holding, LLC at 683; Giovanelli at 616).

Here, as discussed above, Westchester's excuse for failing to interpose an answer is unreasonable as a matter of law. Thus, the instant motion must be denied. It is hereby

ORDERED that the Clerk enter a judgment against FG and Westchester in the amount of $48,195, with interest ^[FN2] . It is further

ORDERED that all remaining parties appear for a Preliminary Conference on November 12, 2025. It is further

ORDERED that plaintiff serve a copy of this Decision and Order upon all parties, with Notice of Entry within 30 days hereof.

This constitutes this Court's decision and Order.