Mancuso, Millbrook, NY, appellant pro se.
Lebensold, Venice, Florida, respondent pro se.
M. LEVENTHAL, J.P., SANDRA L. SGROI, SYLVIA O. HINDS-RADIX,
HECTOR D. LASALLE, JJ.
DECISION & ORDER
from a judgment of the Supreme Court, Westchester County
(Orazio R. Bellantoni, J.), entered May 1, 2014. The
judgment, insofar as appealed from, after a nonjury trial,
dismissed the defendants' counterclaims and is in favor
of the plaintiff and against the defendant Frank Mancuso in
the total sum of $15, 000.
that the judgment is affirmed insofar as appealed from, with
appeal arises out of a dispute between the plaintiff and the
defendant Frank Mancuso, who was the founder of the defendant
Lucky Orphans Horse Rescue, Inc., formerly known as Equine
Escape Rescue, Ltd. (hereinafter Equine Escape), regarding an
agreement entered into between the plaintiff and Mancuso in
2004, which was reduced to a writing on June 10, 2006. The
agreement provided that the plaintiff "invested $15, 000
with [Mancuso] in a 2003 Dodge model 2500 Pickup Diesel"
and, in return, Mancuso agreed to pay the plaintiff 50% of
the money "the truck earns." The agreement also
provided that if Mancuso "decides to keep the truck and
not use it for business, the $15, 000 will be returned to
[the plaintiff] by [Mancuso]." The agreement also stated
that the plaintiff was the owner of a rescue horse, and that
the plaintiff had paid the sum of $600 for the horse.
2011, the plaintiff commenced this action against the
defendants to recover the sum of $15, 600 for breach of the
agreement. The plaintiff alleged, among other things, that
Mancuso failed to either remit any payments to him
representing "50% of the money the truck earns, "
or return his initial investment of $15, 000. In August 2011,
the defendants answered the complaint and asserted
counterclaims against the plaintiff to recover damages based
on theories of quantum meruit and unjust enrichment. The
defendants alleged that the plaintiff owed them the sum of
$31, 850 for the care and boarding of the horse on their
premises. In December 2012, the defendants moved for leave to
enter a default judgment on their counterclaims against the
plaintiff and for summary judgment dismissing the complaint,
which was denied. After a nonjury trial, the court entered a
judgment dismissing the defendants' counterclaims and
awarding the plaintiff the sum of $15, 000 against Mancuso.
The action was dismissed insofar as asserted against Equine
Escape. Mancuso appeals.
Supreme Court properly denied that branch of the
defendants' motion which was for leave to enter a default
judgment on their counterclaims against the plaintiff because
of the plaintiff's failure to serve a timely answer to
their counterclaims (see Batra v Electronic Land Servs.,
Inc., 136 A.D.3d 723, 724; Matter of Tsoukas v
Tsoukas, 125 A.D.3d 872, 876). The defendants failed to
move for leave to enter a default judgment on their
counterclaims within one year, and, in support of their
motion, failed to establish a reasonable excuse for their
delay in seeking a default judgment on the counterclaims and
demonstrate that the counterclaims were potentially
meritorious (see Wells Fargo Bank, N.A. v Chaplin,
107 A.D.3d 881, 882; Kohn v Tri-State Hardwoods,
Ltd., 92 A.D.3d 642, 642-643). In any event, in
opposition to the defendants' motion, the plaintiff
demonstrated a reasonable excuse for his default and the
existence of potentially meritorious defenses.
the Supreme Court properly denied that branch of the
defendants' motion which was, in effect, for summary
judgment dismissing the complaint since the defendants failed
to establish their prima facie entitlement to judgment as a
matter of law (see generally Alvarez v Prospect
Hosp., 68 N.Y.2d 320; Zuckerman v City of New
York, 49 N.Y.2d 557).
review of a determination rendered after a nonjury trial,
this Court's authority is as broad as that of the trial
court, and this Court may render the judgment it finds
warranted by the facts, taking into account in a close case
the fact that the trial judge had the advantage of seeing the
witnesses" (Novair Mech. Corp. v Universal Mgt.
& Contr. Corp.,81 A.D.3d 909, 909-910 [internal
quotation marks omitted]; see Northern Westchester
Professional Park Assoc. v Town of Bedford, 60 N.Y.2d
492, 499; Kamalian v Community OB/GYN Assoc., PLLC,132 A.D.3d 814, 814). Upon our review of the record, we find
that the Supreme ...