CPLR R. 5015 Don’t Try This at Home

CPLR R. 5015 Relief from judgment or order
(a) On motion
(1) excusable default…
newly-discovered evidence

(3) fraud, misrepresentation, or other misconduct of an adverse party
(4) lack of jurisdiction to render the judgment or order
reversal, modification or vacatur of a prior judgment or order upon which it is based

Campbell-Jarvis v Alves, 2009 NY Slip Op 08986 (App. Div., 2nd, 2009)

In order to vacate her default in opposing the defendant's prior motion to dismiss, the plaintiff was required to demonstrate both a reasonable excuse for her default and a meritorious opposition to the motion (see Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 392; Hospital for Joint Diseases v Dollar Rent A Car, 25 AD3d 534; Fekete v Camp Skwere, 16 AD3d 544, 545; Amato v Fast Repair, Inc., 15 AD3d 429, 430; Costanza v Gold, 12 AD3d 551, 552). Although the determination of what constitutes a reasonable excuse lies within the trial court's discretion (see Santiago v New York City Health & Hosps. Corp., 10 AD3d 393, 394; Roussodimou v Zafiriadis, 238 AD2d 568, 569; Grutman v Southgate At Bar Harbor Home Owners' Assn., 207 AD2d 526, 527), and the court has the discretion to accept law office failure as a reasonable excuse (see CPLR 2005), "a pattern of willful default and neglect" should not be excused (Roussodimou v Zafiriadis, 238 AD2d at 569 [internal quotation marks omitted]; see Santiago v New York City Health & Hosps. Corp., 10 AD3d 393; Kolajo v City of New York, 248 AD2d 512; Vierya v Briggs & Stratton Corp., 166 AD2d 645, 645-646; Chery v Anthony, 156 AD2d 414, 417), and the claim of law office failure should be supported by a "detailed and credible" explanation of the default or defaults at issue (Henry v Kuveke, 9 AD3d 476, 479; see Gironda v Katzen, 19 AD3d 644, 645). In this case, the plaintiff's attorney's conclusory, undetailed, and uncorroborated claim of law office failure did not amount to a reasonable excuse (see Forward Door of N.Y., Inc. v Forlader, 41 AD3d 535; Piton v Cribb, 38 AD3d 741; Matter of ELRAC, Inc. v Holder, 31 AD3d 636). In addition, the plaintiff failed to submit an affidavit of merit. Accordingly, the Supreme Court abused its discretion in granting the plaintiff's motion to vacate an order which granted the defendant's motion to dismiss the action upon her default in opposing the motion.

Now, compare that with

Lamar v City of New York, 2009 NY Slip Op 08974 (App. Div., 1st, 2009)

While the City's generalized assertion of law office failure as the excuse for its delay is not particularly compelling, it constitutes "good cause" for the delay (see Spira v New York City Tr. Auth., 49 AD3d 478 [2008]). No prejudice to plaintiff has been shown (see Cirillo v Macy's, Inc., 61 AD3d 538, 540 [2009]), and New York's public policy strongly favors litigating matters on the merits (see Silverio v City of New York, 266 AD2d 129 [1999]). An affidavit of merit is not required where no default order or judgment has been entered (see Cirillo, supra).

Performance Constr. Corp. v Huntington Bldg., LLC, 2009 NY Slip Op 09012 (App. Div., 2nd, 2009).

The Supreme Court providently exercised its discretion in denying that branch of the plaintiff's motion which was for leave to enter a default judgment against the defendant Corcoran Marble & Monument Co., Inc. (hereinafter Corcoran), and in granting Corcoran's cross motion for leave to serve a late answer (see CPLR 3012[d], 5015[a][1]). Considering the lack of any prejudice to the plaintiff as a result of the relatively short 11-day delay in Corcoran's service of an answer, the existence of a potentially meritorious defense, and the public policy favoring the resolution of cases on the merits, the Supreme Court providently excused Corcoran's de minimis delay in answering the complaint (see Klughaupt v Hi-Tower Contrs., Inc., 64 AD3d 545, 546; Schonfeld v Blue & White Food Prods. Corp., 29 AD3d 673, 674; Yonkers Rib House, Inc. v 1789 Cent. Park Corp., 19 AD3d 687, 688). Furthermore, the record reveals that Corcoran was actively engaged in settlement negotiations with the plaintiff's attorney, and that the plaintiff's attorney never mentioned that he would be moving for leave to enter a default judgment (see Armstrong Trading, Ltd. v MBM Enters., 29 AD3d 835, 836; Scarlett v McCarthy, 2 AD3d 623; Lehrman v Lake Katonah Club, 295 AD2d 322). [*2]

Moreover, the Supreme Court properly denied that branch of the plaintiff's motion which was for leave to enter a default judgment against the defendant Tritec Building Co. (hereinafter Tritec). The record reveals that Tritec and the plaintiff entered into a stipulation extending Tritec's time to answer "to and until March 3, 2008." Accordingly, Tritec's service of an answer was timely since the answer was served on March 3, 2008 (see CPLR 320[a]).

The bold is mine.

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