CPLR R. 5015 Relief from judgment or order
CPLR § 5701 Appeals to appellate division from supreme and county courts
CPLR § 321 Attorneys
(a) Appearance in person or by attorney
Kurtzman v Bergstol, 2009 NY Slip Op 03871 (App. Div., 2nd, 2009)
The order dated May 27, 2008, did not decide a motion made on
notice, but merely directed a hearing to aid in the determination of
the appellants' motion. Therefore, no appeal lies as of right from that
order (see CPLR 5701[a][2]). Inasmuch as leave to appeal has not been granted (see
CPLR 5701[c]), and we decline to grant leave to appeal in light of the
fact that the order dated May 27, 2008, was superseded by the order
dated August 1, 2008, the appeal from that order must be dismissed (see Mohler v Nardone, 53 AD3d 600).The appellants' contention that the judgment should have been
vacated because the court lacked jurisdiction to issue it is without
merit; the sheriff was not required to commence a plenary action to
collect poundage (see Martin v Consolidated Edison Co. of N.Y., 146 Misc 2d 756, 758, affd 177 AD2d 548; Knoll v Knoll,
78 Misc 2d 710, 711), as the party to be charged the poundage already
was a party to the lawsuit, and the enforcement of the money judgment
was conducted within the framework of the predicate action (see Martin v Consolidated Edison Co. of N.Y., 146 Misc 2d at 758).
Pisciotta v Lifestyle Designs, Inc., 2009 NY Slip Op 04040 (App. Div., 2nd, 2009)
On appeal, Lifestyle argues that the plaintiffs failed to "bring . .
. proceedings for entry of a default judgment" within the requisite
one-year period, which should have resulted in the dismissal of their
complaint (see CPLR 3215[c]). Lifestyle also argues that, upon
renewal, its motion to vacate the order, inter alia, directing the
entry of a default judgment should have been granted because it
established a "reasonable excuse" for its failure to oppose the
plaintiffs' motion to strike its answer. Specifically, Lifestyle points
to the "uncontroverted medical testimony" of a skin disorder suffered
by Alex Szulman, the president and sole shareholder of Lifestyle,
which, Lifestyle claims, prevented him from personally participating in
the litigation. These arguments are without merit.The entry of so much of the order entered October 2, 2003, as
struck Lifestyle's answer was the functional equivalent to Lifestyle
having defaulted in appearing or answering as of that date (see Fappiano v City of New York, 5 AD3d 627, citing Rokina Opt. Co. v Camera King, 63 NY2d 728; see also Jones v Corley, 35 AD3d 381),
and the Supreme Court thus properly directed the entry of a default
judgment against Lifestyle in the same order. The record reveals that
the plaintiffs "[took] proceedings for the entry of a [default]
judgment" (CPLR 3215[c]) by serving and filing a note of issue and
certificate of readiness dated October 17, 2003. The service and filing
of the note of issue and certificate of readiness constituted the
plaintiffs' attempt to schedule the inquest that had also been directed
in the same order. That the Supreme Court failed to schedule an
inquest, possibly due to the pendency of Lifestyle's motion to vacate
that order, is not a circumstance that can be ascribed to any
procedural default or neglect on the part of the plaintiffs. Therefore,
there is no merit to Lifestyle's argument that the plaintiffs failed to
"bring . . . proceedings for entry of a default judgment" within the
requisite one-year period.
Similarly without merit is Lifestyle's argument that Szulman's
skin disorder prevented him from participating in the litigation, thus
providing Lifestyle with a "reasonable excuse" for its failure to
oppose the motion that resulted in the order, inter alia, directing the
entry of a default judgment. Szulman's personal medical disorder does
not excuse the corporation's failure to oppose the motion to strike its
answer.
An order made on default should, in general, not be vacated
pursuant to CPLR 5015(a)(1) unless the movant can show "a reasonable
excuse for failing to oppose the [prior] motion" (Faga v Harrison Cent. School District, 40 AD3d 690,
690). Whether a party seeking relief under CPLR 5015(a)(1) has
demonstrated a reasonable excuse is a matter that is left to the
provident exercise of the discretion of the Supreme Court (see Green Apple Mgt. Corp. v Aronis, 55 AD3d 669). The Supreme Court did not improvidently exercise its discretion in the order now under review.…The only explanation Lifestyle proffered to the Supreme Court
and this Court for its nonappearance at the conference is that, at the
time the order, inter alia, directing the entry of a default judgment
was entered, Lifestyle was proceeding "pro se." However, Lifestyle's
purported "pro se" status violates CPLR 321(a), which requires a
corporation to appear by attorney only. Reliance on such a violation
cannot constitute a reasonable excuse for a default (see Jimenez v Brenillee Corp., 48 AD3d 351,
352 ["(a) corporate defendant's failure to comply with CPLR 321
provides no basis for vacating a judgment entered against that
defendant"]; Mail Boxes Etc. USA v Higgins, 281 AD2d 176; cf. Guerre v Trustees of Columbia Univ. in City of N.Y., 300 AD2d 29).
In the absence of any valid explanation for its default,
Lifestyle failed to establish a "reasonable excuse for failing to
oppose the [prior] motion" (Faga v Harrison Cent. School District, 40 AD3d at 690).
The bold is mine.
And one other case that was just interesting enought to get in here, Diamond Truck Leasing Corp. v Cross Country Ins. Brokerage, Inc., 2009 NY Slip Op 03862 (App. Div., 2nd, 2009).
bruteforcelawyer.com 