        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
