January 27, 2014
Dante Piano Service Corp., Appellant,
Joan Haedrich Also Known as JOAN ROLA, Respondent.
PRESENT:: LaSALLE, J.P., NICOLAI and IANNACCI, JJ
Appeal from an order of the District Court of Suffolk County, First District (Vincent J. Martorana, J.), dated September 5, 2012. The order granted defendant's motion to vacate a default judgment, granted defendant leave to serve and file a late answer, and ordered plaintiff to make restitution of the sum of $5, 703.36.
ORDERED that the order is modified by providing that defendant's motion is granted only to the extent of vacating the default judgment and by striking the remaining provisions of the order and replacing them with a provision directing that the sum of $5, 703.36 be held in plaintiff's escrow account pending an inquest; as so modified, the order is affirmed, without costs, and the matter is remitted to the District Court for an inquest.
In this action to recover the sum of $5, 002.05 for the removal, storage and disposal of defendant's piano, a default judgment was entered upon defendant's default in appearing and answering. Plaintiff appeals from an order of the District Court which granted defendant's motion, pursuant to CPLR 5015 (a) (1), to vacate the default judgment, granted defendant leave to serve and file a late answer, and ordered restitution by plaintiff to defendant of the sum of $5, 703.36, which is the sum levied from defendant's bank account.
In our view, the District Court improvidently exercised its discretion in granting defendant's motion to vacate the default judgment based on its finding that defendant had set forth a reasonable excuse for her default in answering and appearing (CPLR 5015 [a] ; see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141 ). After the parties had stipulated to an adjournment for defendant to file an answer by May 4, 2012, defendant failed to do so. Defendant's failure to file an answer, based on her attorney's alleged misunderstanding that plaintiff would be serving and filing an amended summons and complaint and that defendant's attorney could wait to file an answer until then, notwithstanding the terms of the stipulation, was not reasonable under the circumstances of this case. Consequently, we find that defendant failed to demonstrate an excusable default.
However, the default judgment must, nevertheless, be vacated, as the District Court Clerk did not have the authority to enter a judgment against defendant pursuant to CPLR 3215 (a), since the damages sought against defendant were not for a "sum certain" and could not be determined without extrinsic proof (see Vinny Petulla Contr. Corp. v Ranieri, 94 A.D.3d 751 ; Stephan B. Gleich & Assoc. v Gritsipis, 87 A.D.3d 216, 222-224 ; Pikulin v Mikshakov, 258 A.D.2d 450, 451 ; General Elec. Tech. Servs. Co. v Perez, 156 A.D.2d 781, 784 ). In light of the foregoing, the District Court should have granted defendant's motion only to the extent of vacating the default judgment and directing an inquest. Under the circumstances presented, we modify the order by providing that defendant's motion is granted only to the extent of vacating the default judgment and by striking the remaining provisions of the order and replacing them with a provision directing that the sum of $5, 703.36 be held in plaintiff's escrow account pending the inquest.
LaSalle, J.P., Nicolai and Iannacci, JJ.,