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PLAINTIFF’S MOTION FOR A DEFAULT JUDGMENT SHOULD HAVE BEEN DENIED AND DEFENDANT’S CROSS MOTION TO RENEW SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED; E-FILING WAS VOLUNTARY IN CHENANGO COUNTY SO FAILURE TO E-FILE WAS NOT A GROUND FOR REJECTION OF DEFENDANT’S MOTION PAPERS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff’s motion for a default judgment should have been denied and defendant’s cross motion to renew should have been granted. The court noted that Chenango County is a consensual or voluntary e-filing county and defendant’s hard copy filing should not have been rejected by the court (for failure to e-file):

… Supreme Court abused its discretion in granting plaintiff’s motion for a default judgment. Although defendant’s motion papers lacked specific details of the underlying circumstances for the delay, the delay herein was de minimis — one week — and should be excused … . Defendant timely opposed the motion, offering a meritorious defense. There is no indication that the default was willful or that plaintiff was prejudiced as a result of the late answer. Moreover, defendant appeared in the action when he opposed plaintiff’s motion for a preliminary injunction and temporary restraining order. Public policy favors the resolution of cases on the merits … . …

Supreme Court confused the cross motion to renew with a motion to reargue and summarily denied it since it was not made within 30 days. This time period applies solely to motions to reargue (see CPLR 2221 [d] [3] …). Preferred Mut. Ins. Co. v DiLorenzo, 2020 NY Slip Op 02845, Third Dept 5-14-20

 

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