CPLR R. 5015; “Interest of justice” and a Footnote (FN 1)

Plaintiff was the victim of a brutal attack in August 2002 which
rendered him a quadriplegic. He commenced this action in 2003 against
the two individuals who personally caused his injuries, as well as
several other individuals who were present and allegedly conspired in
the assault. One such defendant, defendant Jennifer M. Cimaomo
(hereinafter defendant), failed to timely answer and, in 2007,
plaintiff moved for a default judgment as to liability against her.
Over defendant's opposition, Supreme Court found defendant in default.
Defendant now appeals.^[FN1]
[*2]

In considering an application
for a default judgment, a court must ascertain whether "the defendant
demonstrated a reasonable excuse for the default and a meritorious
defense" (Drucker v Ward, 293 AD2d 891, 891-892 [2002]). In
addition, courts have the inherent power to forgive even an unexplained
default "in the interest of justice" (B.U.D. Sheetmetal v Massachusetts Bay Ins. Co., 248 AD2d 856, 856 [1998]; see Wade v Village of Whitehall, 46 AD3d 1302,
1303 [2007]). Here, defendant admits accompanying a group of
individuals to confront plaintiff, but alleges that she did not take
any part in the planning or execution of the assault. After reviewing
the record, we find that defendant has met her burden of demonstrating
viable questions of fact as to whether she conspired or otherwise
participated in the assault. Hence, she demonstrated a potentially
meritorious defense (see Cippitelli v Town of Niskayuna, 277 AD2d 540, 542 [2000]; Cerrone v Fasulo, 245 AD2d 793, 794 [1997]; see also Poree v Bynum, 56 AD3d 261, 262 [2008]).

Turning to the issue of excuse, it is conceded that defendant's
answer was untimely; although she was obligated to answer within 20
days of personal service, which occurred on September 15, 2003 (see
CPLR 320 [a]), she did not serve her answer until October 27, 2003.
However on October 8, 2003, at which point defendant's answer was late
by three days, she was again served with the same summons and complaint
by mail. Acting pro se, rather than seek an extension of her time to
answer, defendant simply answered as if her time to answer began to run
anew from the second service. We find this situation akin to those
where we have held that "defendant['s] default may be permissibly
attributed to excusable 'law office failure'" (Cerrone v Fasulo,
245 AD2d at 794 [1997]). Further, although defendant failed to take any
immediate action after plaintiff returned her answer as untimely, when
notified of the impending default she promptly obtained counsel who
appeared pro bono to oppose entry of the default judgment.

On this record, moreover, it appears that defendant's default
was not willful and that plaintiff was not prejudiced by her delay in
answering (see Drucker v Ward, 293 AD2d at 892)^[FN2]. Indeed, "it is readily apparent that defendant[] did not intend to abandon [her] defense in this action" (Rickert v Chestara, 56 AD3d 941,
942 [2008]). "Thus, given the questions of fact as to merit, the brief
delay, the lack of intention on defendant['s] part to default, the
failure of plaintiff to demonstrate any prejudice attributable to the
delay and the policy preference in favor of resolving disputes on the
merits, we conclude that defendant['s] untimeliness should have been
excused in this instance" (Cerrone v Fasulo, 245 AD2d at 794 [citation omitted]; see Rickert v Chestara, 56 AD3d at 942; Wade v Village of Whitehall, 46 AD3d at 1303; Harcztark v Drive Variety, Inc., 21 AD3d 876, 876-877 [2005]).

Footnote 1: While no appeal generally lies from an order entered upon default (see
CPLR 5511), that prohibition does not apply where, as here, the
defaulting party appears and contests the application for a default
judgment (see ABS 1200, LLC v Kudriashova, 60 AD3d 1164, ___, 874 NYS2d 336, 338 n 3 [2009]; Robert Marini Bldr. v Rao, 263 AD2d 846, 848 [1999]).

Footnote 2:Notably, plaintiff's motion for a default judgment against defendant was not made until August 16, 2007, more than
3½ years after rejecting defendant's answer.