Calendar Date: June 9, 2017
Gershon Tymann & Bonanni, LLP, Albany (Marshall Broad of
counsel), for appellants.
Norfolk, LLP, Lake Placid (Michael J. Hutter of Powers &
Santola, LLP, of counsel), for respondents.
Before: McCarthy, J.P., Egan Jr., Devine and Clark, JJ.
MEMORANDUM AND ORDER
from an order of the Supreme Court (Ellis, J.), entered June
27, 2016 in Franklin County, which, among other things,
granted a motion by defendants Martin Sexton and Georganne
Sexton to vacate two default judgments entered against them.
2012, defendants Martin Sexton and Georganne Sexton
(hereinafter collectively referred to as defendants)
contracted with plaintiff Nils Edward Luderowski, an
architect, to design a camp for defendants' lakefront
property in the Town of Santa Clara, Franklin County
. Defendants subsequently contracted
with plaintiff Redwing Construction Co., Inc. to build the
camp in accordance with Luderowski's designs. In 2013,
however, disputes arose among the parties. By August 2013,
both Luderowski and Redwing (hereinafter collectively
referred to as plaintiffs) filed separate mechanic's
liens against the camp, and they later commenced separate
actions against defendants seeking, among other relief, money
damages and the foreclosure of their respective liens.
Defendants responded by filing pre-answer motions to dismiss
in each of the actions and, alternatively, moving to join the
actions for trial. In separate amended decisions and orders,
Supreme Court, among other things, denied defendants'
motions to dismiss, but granted their motions to join the
actions for trial.
Supreme Court's denial of their motions to dismiss,
defendants failed to answer until nearly one year later,
after plaintiffs served them with a notice of their intention
to apply for default judgments. Defendants promptly answered
upon receiving plaintiffs' notice, but plaintiffs
rejected it as untimely and obtained default judgments.
Defendants then swiftly moved to vacate the default judgments
pursuant to CPLR 5015 (a) (1), and the court granted their
motion. Plaintiffs now appeal, and we affirm.
prevail on their motion to vacate the default judgments,
defendants were required to demonstrate both a reasonable
excuse for their failure to timely answer and the existence
of a potentially meritorious defense to the underlying causes
of action (see CPLR 5015 [a] ; Gage v Village
of Catskill, 144 A.D.3d 1365, 1366 ; Abel v
Estate of Collins, 73 A.D.3d 1423, 1424 ). The
reasonableness of their proffered excuse must be assessed
"based on all relevant factors, including the extent of
the delay, whether there has been prejudice to the opposing
party, whether there has been willfulness, and the strong
public policy in favor of resolving cases on the merits"
(Puchner v Nastke, 91 A.D.3d 1261, 1262 
[internal quotation marks and citations omitted]; see
Fried v Jacob Holding, Inc., 110 A.D.3d 56, 60 ).
To establish the existence of a potentially meritorious
defense, defendants needed only to "make a prima facie
showing of legal merit" (Passeri v Tomlins, 141
A.D.3d 816, 819  [internal quotation marks and
citations omitted]; see Puchner v Nastke, 91 A.D.3d
at 1262 n), as "the quantum of proof needed to prevail
on a CPLR 5015 (a) (1) motion is less than that required when
opposing a summary judgment motion" (Abel v Estate
of Collins, 73 A.D.3d at 1425; see Baptist Health
Nursing & Rehabilitation Ctr., Inc. v Baxter, 140
A.D.3d 1386, 1388 ; State of New York v
Bayramov, 98 A.D.3d 811, 812 ). "A motion to
vacate a prior judgment... is addressed to the court's
sound discretion, subject to reversal only where there has
been a clear abuse of that discretion" (Hayes v
Village of Middleburgh, 140 A.D.3d 1359, 1362 
[internal quotation marks and citations omitted]; see
Gage v Village of Catskill, 144 A.D.3d at 1366;
Passeri v Tomlins, 141 A.D.3d at 817; Abel v
Estate of Collins, 73 A.D.3d at 1424).
defendants attribute their failure to timely serve an answer
to law office failure, namely, defense counsel's
admittedly mistaken belief that one of his former associates
had timely answered. This associate, who had been handling
the matter, left the firm around the time that plaintiffs
served defendants with the amended decision and order, thus
commencing the period within which defendants had to answer.
Defense counsel incorrectly assumed that this associate had
filed and served the answer in the course of "wrap[ping]
up" his work for the firm and did not discover this
error until after plaintiffs served him with notice of their
intention to seek default judgments.
the circumstances, we find that defendants' default was
attributable to an excusable instance of law office failure
(see CPLR 2005; Hoffman v Kessler, 28
A.D.3d 718, 718-719 ; Goldman v Cotter, 10
A.D.3d 289, 291 ; Polir Constr. v Etingin, 297
A.D.2d 509, 513 ). The record reveals that, once the
error was discovered, it was promptly cured (see Puchner
v Nastke, 91 A.D.3d at 1262; Action Lawn &
Landscaping v East Glenville Fire Dist., 254 A.D.2d 585,
587 ). Defendants' participation in significant
motion practice before defaulting also indicates that they
had no intention of abandoning their defense (see Puchner
v Nastke, 91 A.D.3d at 1262; Goldman v Cotter,
10 A.D.3d at 291-292). We further find that defendants'
affidavit of merit and supporting documentation, which allege
that plaintiffs have substantially breached their respective
contracts, suffice to make the requisite prima facie showing
of merit (see Cherokee Owners Corp. v DNA Contr.,
LLC, 116 A.D.3d 517, 518 ; see generally
Catlyn & Derzee, Inc. v Amedore Land Developers,
LLC, 132 A.D.3d 1202, 1206-1207 ; Accadia Site
Contr., Inc. v Erie County Water Auth., 115 A.D.3d 1351,
1353 ). Accordingly, we see no reason to disturb
Supreme Court's determination to grant defendants'
motion to vacate the default judgments, particularly in light
of the apparent lack of prejudice to plaintiffs and the
strong policy in favor of resolving cases on their merits.
McCarthy, J.P., Egan Jr. and Devine, JJ., concur.
that the order is ...