The following e-filed documents, listed by NYSCEF document number (Motion 002) 30, 31, 32, 47, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 64, 65, 67, 68, 70, 71 were read on this motion for DEFAULT JUDGMENT.

The following e-filed documents, listed by NYSCEF document number (Motion 003) 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 48, 62, 63, 66 were read on this motion for DISCOVERY.

In this action, arising from a dispute over a home-renovation project, defendants, Shamik [*2]Cholera and Randa Cholera, move on motion sequence 002 for default judgment on their counterclaims against plaintiff, Kastel Renaissance Interiors, Inc. Plaintiff cross-moves under CPLR 3012 (d) to compel defendants to accept its untimely counterclaim reply. Plaintiff's cross-motion is granted; defendant's motion is denied. On motion sequence 003, defendants move under CPLR 3124 to compel plaintiff to provide discovery and under CPLR 3126 for discovery sanctions. Defendants' motion is granted in part and denied in part as academic.

On motion sequence 002, this court first addresses plaintiff's CPLR 3012 (d) cross-motion to compel acceptance of its untimely reply to counterclaims. The resolution of that motion will affect the court's disposition of defendants' default-judgment motion.

A court considering a CPLR 3012 (d) motion to compel acceptance of an untimely pleading should assess the "length of the delay, the excuse offered, the extent to which the delay was willful, the possibility of prejudice to adverse parties, and the potential merits of any defense." (Emigrant Bank v Rosabianca, 156 AD3d 468, 472-473 [1st Dept 2017].)

Plaintiff contends that its failure timely to submit a reply to defendants' counterclaims was due to law-office failure. Plaintiff's counsel represents that she discovered that the reply might not have been filed only after she took over the matter from an attorney who had left the firm. (See NYSCEF No. 53 at ¶ 15.) The departed attorney's legal secretary has also provided an affidavit. (See NYSCEF No. 54.) She represents that she had believed she filed the answer as directed, only realizing much later that she had not done so. (See id. at ¶¶ 3-4.) Plaintiff's excuse, supported by specific factual detail, is reasonable under the circumstances.

Plaintiff did not file its reply to defendants' counterclaims until September 2023 (see NYSCEF No. 50)—a month after defendants moved for default judgment and 13 months after the answer was due (see NYSCEF Nos. 22 [answer], 30 [notice of motion]). This delay is considerable. At the same time, defendants waited nearly a year themselves before moving for default judgment. The length of plaintiff's delay, therefore, counts against it only slightly. Defendants also have not established that having to accept plaintiff's untimely counterclaim-reply now would cause them prejudice. At most, defendants would have to serve supplemental discovery requests. This court is mindful of defendants' argument that plaintiff's handling of discovery has already resulted in delays (discussed further on motion sequence 003, infra). But the need for additional discovery does not constitute sufficient prejudice to foreclose plaintiff from replying to defendants' seven-figure counterclaim.

Finally, plaintiff has raised potentially meritorious defenses to defendants' counterclaims. Plaintiff contends that Mr. Cholera was "involved in every aspect of design, selection, ordering and receiving items purchased for the renovation project"—and that "his constant mismanagement and lack of experience" led to numerous delays and difficulties. (NYSCEF No. 55 at ¶¶ 6-8, 12.) Plaintiff also claims that Mr. Cholera hired outside contractors who made mistakes that plaintiff was expected to correct. (Id. at ¶ 11.)

Taking into account both the counterclaims filed by defendants and plaintiff's reply (as amplified by the affidavit of its principal), it appears that each side has identified specific ways [*3]in which its adversary assertedly committed costly errors in the completion of the underlying home-renovation project. The parties' dispute about who is at fault and to what extent—and thus who will ultimately owe money to whom—should be heard on its merits.

Plaintiff's cross-motion to compel defendants to accept its untimely answer is granted. Given that disposition, defendants' motion for default judgment is denied.

Defendants have also sought to compel plaintiff to comply fully with defendants' discovery demands—served more than a year before defendants brought this motion. After defendants moved to compel, plaintiff served a supplemental production. Defendants agree that this production addresses nearly all the shortcomings of plaintiff's prior responses and productions.

The only remaining issue that defendants raise about the production's sufficiency relates to a number of checks that plaintiff produced to defendants with redactions. Defendants contend that plaintiff's attorney failed to provide a privilege log to accompany the redactions. Although plaintiff's counsel stated in an email that the checks were redacted because they are unrelated to the litigation, plaintiff has not provided an affidavit to that effect. Plaintiff must therefore give defendants a party affidavit within 30 days of entry of this order. The affidavit shall describe what each check pertains to and why each check is unrelated to this action.

Defendants also request an award of monetary sanctions under CPLR 3126. Given the length of plaintiff's delay in providing the requested discovery, and the number of (unsuccessful) attempts that defendants made to obtain that discovery short of motion practice, defendants' request is granted. Plaintiff must pay defendants the reasonable attorney fees they incurred on this motion, with the amount of those fees to be determined at the close of the case.

Accordingly, it is

ORDERED that plaintiff's CPLR 3012 (d) cross-motion to compel defendants to accept plaintiff's untimely reply to counterclaims (mot seq 002) is granted, and the reply filed at NYSCEF No. 50 is deemed plaintiff's operative pleading with respect to the counterclaims; and it is further

ORDERED that defendants' CPLR 3215 default-judgment motion (mot seq 002) is denied; and it is further

ORDERED that the branch of defendants' motion seeking to compel plaintiff to supplement its discovery responses (mot seq 003) is granted to the extent that plaintiff must within 30 days of entry of this order provide a party affidavit about the redacted checks, as discussed above, and otherwise denied as academic; and it is further

ORDERED that the branch of defendants' motion seeking an award of CPLR 3126 discovery sanctions (mot seq 003) is granted to the extent that plaintiff must pay defendants the reasonable attorney fees incurred by defendant in making the motion, with the amount of those fees to be determined by motion on notice made at the close of the case.