Fun with 5015

CPLR R. 5015 Relief from judgment or order

HSBC Bank USA Natl. Assn. v Nuteh 72 Realty Corp.,
2010 NY Slip Op 01617 (App. Div., 2nd, 2010)

"A defendant seeking to vacate an order entered upon his or her default in opposing a motion must demonstrate both a reasonable excuse for the default and a meritorious defense to the motion and the action" (Newell v Hirsch, 65 AD3d 1108, 1109; see Diamond Truck Leasing Corp. v Cross Country Ins. Brokerage, Inc., 62 AD3d 745; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389; Matter of Gambardella v Ortov Light., 278 AD2d 494, 495; Neuman v Greenblatt, 260 AD2d 616, 617). Here, in opposition to the plaintiff's motion for leave to enter a default judgment against the defendants Nuteh 72 Realty Corp. and Nathan Friedman (hereinafter the defendants), and in support of their cross motion, inter alia, to vacate their default in opposing the plaintiff's motion to strike their answer pursuant to CPLR 3126, the defendants succeeded in demonstrating a reasonable excuse for their default (see Evolution Impressions, Inc. v Lewandowski, 59 AD3d 1039, 1040).

However, the defendants failed to demonstrate, through evidence in admissible form, the existence of a meritorious defense, specifically, under the circumstances here, whether they were good faith purchasers of the subject real property for valuable consideration. Friedman's affirmation states only that "NUTEH is a good faith' purchaser for value of the Premises." This conclusory, [*2]self-serving, and bare legal conclusion was insufficient to establish the existence of a meritorious defense (see Diamond Truck Leasing Corp. v Cross Country Ins. Brokerage, Inc., 62 AD3d at 746; Matter of Atkin v Atkin, 55 AD3d 905; cf. Atwater v Mace, 39 AD3d 573, 575). Additionally, in the absence of any foundation, the defendants' submission of a one-page printout of a New York City Department of Finance document entitled "A[utomated] C[ity] R[egister] I[nformation] S[ystem] Search Results By Parcel Identifier" did not constitute evidence in admissible form sufficient to establish the existence of a meritorious defense (see generally Knupfer v Hertz Corp., 35 AD3d 1237, 1238; Triangle Transp., Inc. v Markel Ins. Co., 18 AD3d 229; Matter of Haber v Haber, 306 AD2d 282, 283; Merrill/New York Co. v Celerity Sys., 300 AD2d 206, 207). Accordingly, in the absence of any admissible evidence sufficient to demonstrate the existence of a meritorious defense, the Supreme Court should have granted the plaintiff's motion for leave to enter a default judgment, and denied the defendants' cross motion, inter alia, to vacate their default in opposing the plaintiff's motion to strike their answer.


Gross v Kail, 2010 NY Slip Op 01616 (App. Div., 2nd, 2010)

The Supreme Court erred in denying the plaintiffs' motion for leave to enter judgment against the defendants upon their default in appearing or answering and, in effect, granting the defendants' application, inter alia, to deem the proposed answer to have been served. In support of their motion, the plaintiffs submitted their process server's affidavits of service of the summonses and the complaints, a factually-detailed complaint verified by the plaintiff Gerald P. Gross, and an affirmation from attorney Mitchell J. Rich regarding the defendants' default in appearing and answering (see CPLR 3215[f]).

In opposition to the plaintiffs' motion and in support of their application, inter alia, to deem the proposed answer to have been served, the defendants were required to demonstrate a reasonable excuse for the default and the existence of a meritorious defense (see CPLR 5015[a][1]; Miller v Ateres Shlomo, LLC, 49 AD3d 612, 613; Lipp v Port Auth. of N.Y. & N.J., 34 AD3d 649; [*2]Juseinoski v Board of Educ. of City of N.Y., 15 AD3d 353, 356; Curran v Graf, 13 AD3d 409; Ennis v Lema, 305 AD2d 632, 633). The defendants failed to provide any excuse for their default and failed to demonstrate that they had a meritorious defense to the action. The defendants submitted a proposed answer verified only by their attorney, who had no personal knowledge of the facts (see Baldwin v Mateogarcia, 57 AD3d 594, 595; Bekker v Fleischman, 35 AD3d 334, 335; Pampalone v Giant Bldg. Maintenance, Inc., 17 AD3d 556, 557; Juseinoski v Board of Educ. of City of N.Y., 15 AD3d at 356). Accordingly, the plaintiffs' motion should have been granted and the defendants' application should have been denied.

393 Lefferts Partners, LLC v New York Ave. at Lefferts, LLC, 68 AD3d 976 (App. Div., 2nd, 2009)

A defendant seeking to vacate a default in answering must demonstrate a reasonable excuse for the default and the existence of a meritorious defense (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Gray v B. R. Trucking Co., 59 NY2d 649, 650 [1983]; Harris v City of New York, 30 AD3d 461, 463-464 [2006]; Orangetown Policemen&
#39;s Benevolent Assn. v Town of Orangetown,
18 AD3d 841 [2005]). The appellant submitted an affidavit of service that stated that it was served on August 10, 2007, pursuant to Limited Liability Company Law § 303, by service upon the Secretary of State. The appellant also submitted a certificate of service and return receipt showing that the Secretary of State delivered the summons and complaint to the appellant's designated address by certified mail, return receipt requested, but the return receipt was not dated and was signed by a person who was not employed by the appellant. Joseph Artusa, one of the appellant's managing members, stated in an affidavit that he was out of the office "on many days" in August and September of 2007 and did not see the summons and complaint on his desk until late September, when the time to answer it had expired. This statement does not provide a reasonable excuse for the appellant's default. Moreover, the Supreme Court providently exercised its discretion in determining that the appellant was not entitled to relief pursuant to CPLR 317, since it failed to demonstrate that it did not receive actual notice of the summons and complaint in time to defend the action (see CPLR 317; Taieb v Hilton Hotels Corp., 60 NY2d 725 [1983]; Franklin v 172 Aububon Corp., 32 AD3d 454 [2006]; Brockington v Brookfield Dev. Corp., 308 AD2d 498 [2003]). In addition, the appellant failed to demonstrate a meritorious defense to the action.

The bold is mine

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