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Steven James Contracting Corp v. andrew C. Spieler and Teresa M. Spieler

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


August 27, 2012

STEVEN JAMES CONTRACTING CORP.,
RESPONDENT, --
v.
ANDREW C. SPIELER AND TERESA M. SPIELER,
APPELLANTS.

Appeal from an order of the Civil Court of the City of New York, Kings County (Nancy M. Bannon, J.), entered September 7, 2011.

Steven James Contr. Corp. v Spieler

Decided on August 27, 2012

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: PESCE, P.J., RIOS and SOLOMON, JJ

The order denied defendants' motion to vacate a default judgment and, in effect, the underlying order entered August 3, 2011 granting the branch of plaintiff's unopposed motion seeking to strike defendants' answer and counterclaims and, upon such vacatur, to deny plaintiff's motion to strike defendants' answer and counterclaims.

ORDERED that the order is reversed, without costs, defendants' motion to vacate the default judgment and, in effect, the underlying order entered August 3, 2011 granting the branch of plaintiff's unopposed motion seeking to strike defendants' answer and counterclaims and, upon such vacatur, to deny plaintiff's motion is granted to the extent of vacating the default judgment and the August 3, 2011 order, and the matter is remitted to the Civil Court for a determination de novo of plaintiff's motion to strike defendants' answer and counterclaims or, in the alternative, to compel defendants to serve a bill of particulars.

Plaintiff commenced this breach of contract action to recover an unpaid balance of $12,140 allegedly due for construction work that plaintiff had performed for defendants. Defendants interposed various counterclaims. Plaintiff moved to strike defendants' answer and counterclaims or, in the alternative, to compel defendants to serve a bill of particulars. Defendants failed to oppose plaintiff's motion. By order entered August 3, 2011, the Civil Court granted the branch of plaintiff's motion seeking to strike defendants' answer and counterclaims, and a default judgment was subsequently entered pursuant to the order. Defendants moved to vacate the default judgment and, in effect, the underlying order entered August 3, 2011, and, upon such vacatur, to deny plaintiff's motion. By order entered September 7, 2011, the Civil Court denied defendants' motion, finding that defendants had failed to provide a reasonable excuse for their default in opposing plaintiff's motion.

Upon a review of the record, we find that the Civil Court improvidently exercised its discretion in denying defendants' motion. As an excuse for failing to oppose plaintiff's motion, defendants' counsel asserted that he had not become aware of plaintiff's motion until August 8, 2011, because the motion papers had apparently been mailed to his office while the receptionist was on vacation and placed into a pile of unsorted miscellaneous documents in the vicinity of the receptionist's desk. Under the circumstances presented, we find that the fact that defendants' attorney's mail was misplaced and/or mishandled constitutes a reasonable excuse for defendants' default (see Rodriguez v Rodriguez, 67 AD3d 499 [2009]; Wilson v Sherman Terrace Coop., Inc., 14 AD3d 367 [2005]; see generally Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]).

Accordingly, the order entered September 7, 2011 is reversed, the default judgment and the order entered August 3, 2011 are vacated, and the matter is remitted to the Civil Court for a determination de novo of plaintiff's motion to strike defendants' answer and counterclaims or, in the alternative, to compel defendants to serve a bill of particulars.

Pesce, P.J., Rios and Solomon, JJ., concur.

Decision Date: August 27, 2012

20120827

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