After plaintiff did not show up for the scheduled attorney’s fee hearing, the court clerk called plaintiff’s counsel.

He advised he would not be appearing, and that plaintiff withdraws the request for attorney’s fees.

Accordingly, It is hereby ORDERED that no attorney’s fees are granted.

Check if Appropriate: Other (Specify

A defendant seeking to vacate a default under this provision must demonstrate a reasonable excuse for its delay in appearing and answering the complaint and a meritorious defense to the action (see, e.g., Gray v B. R. Trucking Co., 59 NY2d 649, 650; Blake v City of New York, 90 AD2d 531).

Plaintiff commenced the instant action by filing its motion for Summary Judgment in lieu of complaint on February 28, 2020 and the defendants were served on March 3, 2020.

Defendants did not provide any indication that the motion would be opposed until their submission of opposition papers on October 30, 2020, a week after this Court issued its decision.

Defendants argue that “based on the various Executive Orders issued by Governor Cuomo due to the COVID-19 pandemic, Kwicksilver and Mr. Tziranis understood there was a toll of all relevant deadlines, which effectively extended the return date of the Summary Judgment Motion to at least November 3, 2020.” Pursuant to Executive Order 202.8, “In accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis, any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate’s court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled…” The Court notes that the Executive Order and the subsequent related Executive Orders do not relieve a party of the duty to timely oppose motions before the Court.

A review of the Asset Purchase Agreement reveals that it is entirely devoid of any representations that the properties at issue are fit for any particular purpose.