Calendar Date: May 30, 2017
Boeggeman, George & Corde, PC, Albany (Paul A. Hurley of
counsel), for Aloha Energy and others, appellants.
Scolamiero, Mortati & Hurd, LLP, Albany (Thomas Cullen of
counsel), for Lee Horning and another, appellants in action
Brennan & White, LLP, Queensbury (Joseph R. Brennan of
counsel), for Lee Horning, appellant in action No. 2.
Barclay Damon, LLP, Albany (David M. Cost of counsel), for
Inwald Enterprises, LLC, and another, respondents.
Before: McCarthy, J.P., Egan Jr., Lynch, Rose and Mulvey, JJ.
MEMORANDUM AND ORDER
from an order of the Supreme Court (Krogmann, J.), entered
January 5, 2016 in Warren County, which, among other things,
granted defendants' motion in action No. 2 to vacate the
default judgment entered against them.
about September 2009, Inwald Enterprises, LLC retained Lee
Horning to reconstruct a single-family residence in the
hamlet of Cleverdale, Warren County. Horning apparently was
to act as the general contractor for the project and, in
conjunction therewith, purportedly was responsible for
insulating the premises. To that end, Horning allegedly
subcontracted the insulation work to an entity known as Aloha
Energy or Aloha Homes, LLC, which, in turn, installed spray
foam insulation at the site. When Robin Inwald moved into the
home in November 2011, she detected what has variously been
described as "a very strong odor" or
"stench" throughout the house. When the
"noxious odor persisted, " Robin Inwald vacated the
premises and, thereafter, she and Inwald Enterprises, LLC
(hereinafter collectively referred to as Inwald) commenced
action No. 1 against, among others, Horning and the Aloha
entities, contending that the "poorly manufactured"
and "improperly installed" spray foam insulation
was the source of the problems in her home. In response,
Horning commenced action No. 2 against Inwald for breach of
contract, alleging that Inwald failed to pay for certain
labor, materials and services rendered.
preliminary conference was held in October 2013, at which
time the two actions were joined and a discovery schedule was
established . After Inwald initially failed to
comply with certain discovery demands and a 30-day
conditional order was issued, Inwald responded to the
demands, the discovery deadline was extended and a status
conference was scheduled for March 2015. When Inwald's
counsel, Christopher Humphrey, failed to appear for the
scheduled conference and attempts to reach him by telephone
were unsuccessful, Supreme Court sent Humphrey a letter
inquiring as to his absence. Humphrey failed to respond
within the 10-day period allotted, and Supreme Court
scheduled a hearing to afford Humphrey an opportunity to
explain his absence and to consider whether sanctions should
be imposed. Humphrey responded by letter, attributing his
failure to attend to an unexpected need to travel out of
state to care for his minor children, and Supreme Court
indicated that it would treat Humphrey's response as a
written submission and render a determination upon that
next status conference was scheduled for September 11, 2015
and, when Humphrey again failed to appear, Supreme Court
dismissed the complaint in action No. 1 and granted Horning a
default judgment in action No. 2 . Upon learning of this
development, Inwald retained new counsel and promptly moved
to renew/vacate Supreme Court's resulting order and
judgment. Supreme Court granted Inwald's motion -
vacating both the order dismissing action No. 1 and the
default judgment entered in action No. 2 - and this appeal by
Horning and Aloha ensued.
affirm. "A party seeking to vacate a judgment of default
must demonstrate a reasonable excuse for the default and the
existence of a meritorious defense" (Passeri v
Tomlins, 141 A.D.3d 816, 817  [citations omitted];
see Matter of Village Green Hollow, LLC v Assessor of the
Town of Mamakating, 145 A.D.3d 1134, 1136 ).
"Whether there is a reasonable excuse for a default is a
discretionary, sui generis determination to be made by the
court 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, brackets and citations omitted];
see Fried v Jacob Holding, Inc., 110 A.D.3d 56, 60
). As to the existence of a meritorious defense, it is
well settled that "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 1423, 1425
; accord Passeri v Tomlins, 141 A.D.3d at 818;
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 or order 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 Baptist Health Nursing &
Rehabilitation Ctr., Inc. v Baxter, 140 A.D.3d at 1387).
Further, "[c]ourts are not limited to vacating a
judgment pursuant to the enumerated grounds set forth in CPLR
5015..., as they retain inherent discretionary power to
vacate their own judgments for sufficient reason and in the
interests of substantial justice" (Borst v
International Paper Co., 121 A.D.3d 1343, 1348 
[internal quotation marks and citation omitted]; see
Hayes v Village of Middleburgh, 140 A.D.3d at 1362;
Gurin v Pogge, 112 A.D.3d 1028, 1030 ;
State of New York v Bayramov, 98 A.D.3d at 811-812;
Kostun v Gower, 61 A.D.3d 1307, 1307 ).
even applying the arguably more exacting standard set forth
in CPLR 5015 (a) (1), we do not find that Supreme Court
abused its discretion in granting Inwald's motion. While
there indeed may be instances where counsel's inaction or
dilatory conduct may be imputed to the client (see e.g.
Carillon Nursing & Rehabilitation Ctr., LLP v Fox,
118 A.D.3d 933, 934 ; Gutman v A to Z Holding
Corp., 91 A.D.3d 718, 719 ), a review of Robin
Inwald's affidavit - together with the supporting
documentation annexed thereto - reveals that she never
intended to abandon either the pursuit of action No. 1 or the
defense of action No. 2 (see e.g. Puchner v Nastke,
91 A.D.3d at 1262) but, rather, reasonably believed that
Humphrey was actively pursuing and properly defending
Inwald's interests in the context thereof (see e.g.
Gage v Village of Catskill, 144 A.D.3d 1365, 1367
; Abel v Estate of Collins, 73 A.D.3d at
1424-1425). Although Robin Inwald acknowledged that Humphrey
often was slow to respond to her inquiries, she averred that
he assured her that discovery was progressing and that he
would keep her apprised of further court conferences and
developments. Indeed, Robin Inwald asked Humphrey that she be
included in what she believed would be a telephone conference
with Supreme Court in September 2015 and, when Humphrey
failed to respond to her request, she went down to the
courthouse and inquired as to the status of the cases - only
to learn that the complaint had been dismissed in action No.
1 and that a default judgment had been entered in action No.
2. As noted previously, new counsel then was retained and the
instant motion to vacate was brought. Under these
circumstances, we cannot say that Supreme Court abused its
discretion in declining to penalize Inwald for Humphrey's
omissions and, further, in finding that Inwald demonstrated a
reasonable excuse for the default.
reach a similar conclusion relative to the existence of a
meritorious defense. Although Horning and Aloha take issue
with the quality and sufficiency of the supporting
documentation annexed to Robin Inwald's affidavit, we are
satisfied that the underlying complaint, the subject
affidavit and the various letters and reports submitted
therewith - documenting both the existence and alleged source
of the noxious odors in the home and the remediation efforts
required relative thereto - are sufficient to establish a
meritorious defense. To the degree that either Aloha or
Horning more specifically challenge certain causes of action
set forth in Inwald's complaint, suffice it to say that,
given both the limited record before us and the disputed
factual issues, the ...