CPLR R. 5015; CPLR R. 2103

CPLR R. 5015 Relief from judgment or order

CPLR R. 2103 Service of papers

Zaidi v New York Bldg. Contrs., Ltd., 2009 NY Slip Op 02989 (App. Div., 2nd, 2009)

To vacate their default in appearing at the trial and inquest, the defendants were [*2]required to demonstrate both a reasonable excuse for the default and a meritorious defense to the action (see CPLR 5015[a][1]; Vasquez v New York City Hous. Auth., 51 AD3d 781, 782; Conserve Elec., Inc. v Tulger Contr. Corp., 36 AD3d 747; Zeltser v Sacerdote, 24 AD3d 541).
Although determining what constitutes a reasonable excuse generally
lies within the sound discretion of the Supreme Court, reversal is
warranted if that discretion is improvidently exercised (see McHenry v Miguel, 54 AD3d 912, 913; Ahmad v Aniolowiski, 28 AD3d 692, 693; Matter of Zrake v New York City Dept. of Education, 17 AD3d 603).

The Supreme Court improvidently exercised its discretion in
denying that branch of the defendants' motion which was to vacate their
default in appearing at the trial on January 25, 2008, and at the
inquest on the issue of damages held on the same date. The defendants
presented a reasonable excuse for their default based upon their
principal's inability, due to the terminal illness and death of his
wife, to retain new trial counsel after former counsel was relieved
(see Du Jour v DeJean, 247 AD2d 370, 371; Matter of McCaffrey v McCaffrey, 210 AD2d 409; State Div. of Human Rights v North Broadway Holding Corp., 38 AD2d 856). Moreover, the defendants' submissions were sufficient to demonstrate the existence of meritorious defenses (see Rocovich v Consolidated Edison Co., 78 NY2d 509; Dooley v Peerless Importers, Inc., 42 AD3d 199; Magnuson v Syosset Community Hosp., 283 AD2d 404).

Furthermore, the Supreme Court erred in denying that branch of
the defendants' motion which was to vacate the prior order dated
January 23, 2008, granting, upon reargument, the third-party
defendant's unopposed motion for summary judgment dismissing the fourth
cause of action in the third-party complaint. Absence of proper service
of a motion is a sufficient and complete excuse for a default on a
motion and deprives the court of jurisdiction to entertain the motion
(see Daulat v Helms Bros., Inc., 32 AD3d 410, 411; Bianco v LiGreci, 298 AD2d 482; Welch v State of New York,
261 AD2d 537, 538). The defendants and the third-party defendant
submitted conflicting evidence with respect to the issue of whether the
third-party defendant's motion for leave to reargue was properly served
upon the defendants (see CPLR 2103[b][2], [c], [f][1]; Welch v State of New York, 261 AD2d at 538). Accordingly, a hearing and a new determination are necessary (see Daulat v Helms Bros., Inc., 32 AD3d at 411; LPN Consulting Corp. v Hamm, 202 AD2d 479; Sport-O-Rama Health & Fitness Ctr. v Centennial Leasing Corp., 100 AD2d 584, 585).

The bold is mine.

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