United States District Court, S.D. New York
OPINION & ORDER
S. ROMAN UNITED STATES DISTRICT JUDGE.
Marianina Oil Corp. ("Marianina" or
"Defaulting Defendant") seeks to set aside a
default judgment entered against it when it failed to appear
or defend against the claims brought against it by Plaintiff
White Plains Housing Authority (the "Housing
Authority") and Defendants/Third-Party Plaintiffs Getty
Properties Corporation, Tyree Environmental Corporation,
Singer Real Estate Group, LLC, Michael C. Kenny, and Kenneth
C. Seus (the “Getty Defendants”). For the reasons
that follow, Defaulting Defendant's motion is GRANTED.
opinion assumes the reader's familiarity with the long
procedural history of this case and summarizes only the
portions relevant to deciding the instant motion.
the Housing Authority, initiated this action in late 2013
against the Getty Defendants for the alleged contamination of
the land underneath a public housing development located at
159 S. Lexington Ave. in White Plains, New York.
(See Compl. ¶ 1, ECF No. 1.) The Defendants
either owned or operated the adjacent Getty gas station
located at 26 East Post Road, or operated treatment systems
located on that property, at times relevant to the alleged
migration of hazardous materials from the gas station to the
parking lot located at the housing development. (Id.
¶¶ 11-12, 15, 18, 21, 24-25, 28.) At the time this
suit was brought, 350 people, including children and elderly
individuals, lived at the development. (Id. ¶
March 30, 2015, the Getty Defendants filed a third-party
complaint against Marianina alleging that any damages the
Housing Authority may have incurred “as a result of
gasoline contamination in the soil and groundwater at
Plaintiff's [159 S. Lexington Ave.] [p]roperty . . . were
caused in whole or in part by discharges [of hazardous
materials] occurring at and/or emanating from the 34 East
Post Road [p]roperty” where Marianina owned and
operated a different gas station. (Third Party Compl.
¶¶ 14-16, 39, ECF No. 67.) Subsequently on August
14, 2015, Plaintiff amended the complaint in the direct
action to include Marianina as an additional Defendant.
(See ECF No. 82.) Marianina did not respond to
either complaint. The Court held a conference on October 21,
2015 where all parties were present except for Marianina who
did not appear. (See Minute Entry of Oct. 21, 2015.)
Clerk of the Court entered a certificate of default against
Marianina on October 27, 2015. (ECF No. 98.) On October 28,
2015, the Court scheduled a hearing for December 1, 2015, for
Marianina to show cause as to why a default judgment should
not be entered against it for failing to appear or respond in
any way to the complaints filed against it. (ECF No. 102.)
Neither a representative nor counsel for Marianina appeared
at the hearing. (See Minute Entry of Dec. 1, 2015.)
Accordingly, the Court entered default judgment against
Marianina on Plaintiff's claims. (ECF No. 119.)
than nine months after the default judgment was entered and
almost a year and a half since the third-party complaint
against it was filed, Marianina surfaced for the first time-
requesting that the default judgment entered against it be
vacated. (See ECF Nos. 166 & 167.) The resulting
motion to vacate was fully briefed on February 1, 2017 (ECF
No. 192), though Plaintiff has supplemented its opposition by
submission dated April 12, 2017. (ECF No. 209.)
ON A MOTION TO VACATE A DEFAULT OR A DEFAULT
the entry of either a default or a default judgment,
defaulting party may seek to have such an entry set aside.
See Fed. R. Civ. P. 55(c) & 60(b); New York
v. Green, 420 F.3d 99, 104 (2d Cir. 2005) (“if a
judgment has entered on the default, the court is authorized
to set the judgment aside in accordance with the provisions
of Rule 60(b)”). A court “may set aside an entry
of default for good cause[.]” Fed.R.Civ.P. 55(c). As
for a default judgment, “a district court may vacate a
judgment for any of the  reasons” enumerated in Rule
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence . . .; (3) fraud . . .,
misrepresentation, or other misconduct of an adverse party;
(4) the judgment is void; (5) the judgment has been
satisfied, released, or discharged, or a prior judgment upon
which it is based has been reversed or otherwise vacated, or
it is no longer equitable that the judgment should have
prospective application; or (6) any other reason justifying
relief from the operation of the judgment.
Green, 420 F.3d at 104 (quoting Fed.R.Civ.P. 60(b)).
Since “a default judgment is ‘the most severe
sanction which the court may apply, '” when
“ruling on a motion to vacate a default judgment, all
doubts must be resolved in favor of the party seeking relief
from the judgment in order to ensure that to the extent
possible, disputes are resolved on their merits.”
Id. In weighing the relevant considerations, it is
the Court's duty to “provide specific reasons for a
denial of a motion to set aside a default” of either
variety. See Enron Oil Corp. v. Diakuhara, 10 F.3d
90, 97 (2d Cir. 1993).
standard for setting aside the entry of a default pursuant to
Rule 55(c) is less rigorous than the ‘excusable
neglect' standard for setting aside a default judgment by
motion pursuant to Rule 60(b).” Meehan v.
Snow, 652 F.2d 274, 276 (2d Cir. 1981). The
considerations, however, are the same under both rules:
“whether the default was willful, whether setting it
aside would prejudice the adversary, and whether a
meritorious defense is presented.” Id. at 277
(Rule 55(c)); see Green, 420 F.3d at 108 (“We
have often emphasized that . . . the court's
determination [of a Rule 60(b) motion] must be guided by
three principal factors: ‘(1) whether the default was
willful, (2) whether the defendant demonstrates the existence
of a meritorious defense, and (3) whether, and to what
extent, vacating the default will cause the nondefaulting
party prejudice.'”). In egregious cases,
“there is no practical difference” between
applying Rule 55(c) or 60(b). See Bricklayers &
Allied Craftworkers Local 2, Albany, N.Y. Pension Fund v.
Moulton Masonry & Const., LLC, 779 F.3d 182, 186 n.1
(2d Cir. 2015).
regard to default judgments specifically, “Rule
60(b)(1)  permits courts to reopen judgments . . . only on
motion made within one year of the judgment, ” while
“Rule 60(b)(6) goes further  and empowers the court
to reopen a judgment even after one year has passed . . .
.” Pioneer Inv. Servs. Co. v. Brunswick Assocs.
Ltd. P'ship, 507 U.S. 380, 393 (1993). The
provisions, however, are “mutually exclusive, and thus
a party who failed to take timely action due to
‘excusable neglect' may not seek relief more than a
year after the judgment by resorting to subsection
(6).” Id. (citation omitted); see also
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