SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

750 

CA 12-01684 

PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND LINDLEY, JJ. 

 

APRYL CALACI, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

ALLIED INTERSTATE, INC., ALLIED INTERSTATE, LLC 

AND IQOR US INC., DEFENDANTS-APPELLANTS. 

(APPEAL NO. 2.) 

 

REED SMITH LLP, NEW YORK CITY (CASEY D. LAFFEY OF COUNSEL), AND

UNDERBERG & KESSLER LLP, BUFFALO, FOR DEFENDANTS-APPELLANTS. 

LAW OFFICES OF KENNETH HILLER, PLLC, AMHERST (KENNETH R. HILLER OF

COUNSEL), FOR PLAINTIFF-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Monroe County (Thomas

M. Van Strydonck, J.), entered August 24, 2012. The order denied the

motion of defendants to vacate the default order entered May 26, 2012. 

It is hereby ORDERED that the order so appealed from is

unanimously reversed on the law without costs, defendants’ motion is

granted, and the matter is remitted to Supreme Court, Monroe County,

for further proceedings in accordance with the following Memorandum: 

In appeal No. 1, defendants appeal from an order that, inter alia,

granted plaintiff’s motion for judgment on liability based on

defendants’ default and for an inquest on damages, and denied

defendants’ amended motion to dismiss the complaint and to compel

arbitration. In appeal No. 2, defendants appeal from a subsequent

order denying their motion to vacate the order in appeal No. 1. We

note at the outset that the appeal from the order in appeal No. 1 must

be dismissed because no appeal lies from an order entered on default

(see CPLR 5511; Johnson v McFadden Ford, 278 AD2d 907, 907). It is

undisputed that there was indeed a default; defendants’ amended motion

to dismiss, served in lieu of an answer, was procedurally defective

because their attorneys failed to obtain a request for judicial

intervention (RJI) prior to serving the motion. We agree with

defendants in appeal No. 2, however, that Supreme Court abused its

discretion in denying their motion to vacate the default order in

appeal No. 1. 

To establish an excusable default under CPLR 5015 (a) (1), the

defaulting party must proffer a reasonable excuse for the default as

well as a meritorious defense to the action or proceeding (see Matter

of Clinton County [Miner], 39 AD3d 1015, 1016; Matter of Jefferson
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CA 12-01684 

County, 295 AD2d 934, 934). In determining whether to vacate an order

entered on default, “the court should consider relevant factors, such

as the extent of the delay, prejudice or lack of prejudice to the

opposing party, whether there has been willfulness, and the strong

public policy in favor of resolving cases on the merits” (Moore v Day,

55 AD3d 803, 804; see Puchner v Nastke, 91 AD3d 1261, 1262; Kahn v

Stamp, 52 AD2d 748, 749). 

Here, defendants established that their default was due to the

failure of their attorneys to obtain an RJI before serving the amended

motion to dismiss, which was otherwise timely. The court erred in

rejecting that excuse on the ground that “law office failure is not an

excuse that is accepted by the Court of Appeals.” It is well

established that law office failure may be excused, in the court’s

discretion, when deciding a motion to vacate a default order (see CPLR

2005; Raphael v Cohen, 62 NY2d 700, 701; Alternative Automotive v

Mowbray, 101 AD2d 715, 715). With respect to other relevant factors,

we note that defendants had contested plaintiff’s claims in federal

court for more than a year before this action was recommenced in

Supreme Court, and their attorneys had filed timely notices of

appearances in Supreme Court and had been communicating with

plaintiff’s attorney before the answer was due. We further note that

plaintiff was not prejudiced by defendants’ inadvertent default, and

that the extent of the delay was minimal. Indeed, defendants moved to

vacate the default order six days after the court rendered its

decision from the bench granting plaintiff’s motion and three days

before the default order was entered.

 

 We further conclude that, contrary to plaintiff’s contention,

defendants proffered a meritorious defense to the complaint, which

alleges a single cause of action under the Telephone Consumer

Protection Act of 1991 (47 USC § 227, as added by Pub L 102-243, 105

US Stat 2394; see 47 CFR 64.1200 et seq.). Defendants submitted,

inter alia, an affidavit of merit from an employee of Capital One

Services, LLC, an affiliate and service provider to Capital One Bank

(USA) N.A. (hereafter, Capital One), who averred that he personally

had reviewed Capital One’s records and attached plaintiff’s online

credit card application. According to the employee, the records

established that plaintiff had given Capital One her home telephone

number and, pursuant to a “Customer Agreement,” had consented to

receiving telephone calls at that number. If the employee’s averments

are true, then defendants, as representatives of Capital One, may have

at least a partial defense to the complaint. Considering “the strong

public policy in favor of resolving cases on the merits” (Orwell Bldg.

Corp. v Bessaha, 5 AD3d 573, 574, appeal dismissed 3 NY3d 703; see

Lauer v City of Buffalo, 53 AD3d 213, 217), we conclude that the court

abused its discretion in denying defendants’ motion to vacate the

default order. We therefore reverse the order in appeal No. 2, and

grant defendants’ motion.

 Inasmuch as the court granted plaintiff’s motion in appeal No. 1,

the court had no occasion to rule upon defendants’ amended motion to

dismiss the complaint and to compel arbitration. Under the

circumstances of this case, we remit the matter to Supreme Court to 
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CA 12-01684 

address defendants’ amended motion. 

Entered: July 5, 2013 Frances E. Cafarell

Clerk of the Court