Defaultastic CPLR 5015

CPLR R. 5015

CPLR R. 3211(e)

CPLR § 321 Attorneys
(c) Death, removal or disability of attorney

Alterbaum v Shubert Org., Inc., 2011 NY Slip Op 00339 (App. Div., 2nd 2011)

To vacate an order entered upon their default in opposing the plaintiff's motion for leave to enter a default judgment, the defendants were required to demonstrate, inter alia, a reasonable excuse for their default in appearing or answering the complaint and a potentially meritorious defense to the action (see CPLR 5015[a][1]; Abdul v Hirschfield, 71 AD3d 707Bekker v Fleischman, 35 AD3d 334Epps v LaSalle Bus, 271 AD2d 400). The defendants failed to proffer any explanation for their failure to oppose either of the plaintiff's two motions for leave to enter judgment upon their default, one in October 2009, and the second in December 2009, both of which were served upon them (see Epps v LaSalle Bus, 271 AD2d 400). The defendants' claim, which was improperly presented for the first time in a reply affidavit, that their executive assistant did not recall receiving the two motions, did not overcome the presumption of proper mailing created by the affidavits of service (see Kihl v Pfeffer, 94 NY2d 118, 122; Engel v Lichterman, 62 NY2d 943; Mei Yun Li v Qing He Xu, 38 AD3d 731Terlizzese v Robinson's Custom Serv., Inc., 25 AD3d 547, 548). Furthermore, the defendants did not offer a reasonable explanation for their inaction between December 2009 and May 2010 when they moved to vacate the order dated March 4, 2010. Under the circumstances, the defendants' pattern of willful neglect and default should not have been excused (see Bekker v Fleischman, 35 AD3d 334Edwards v Feliz, 28 AD3d 512, 513; Gainey v Anorzej, 25 AD3d 650, 651; Roussodimou v Zafiriadis, 238 AD2d 568, 568). In view of the lack of a reasonable excuse, it is unnecessary to consider whether the defendants sufficiently [*2]demonstrated the existence of a potentially meritorious defense (see Abdul v Hirschfield, 71 AD3d at 709; Segovia v Delcon Constr. Corp., 43 AD3d 1143, 1144; American Shoring, Inc. v D.C.A. Constr., Ltd., 15 AD3d 431).

Contrary to the defendants' contention, the plaintiff's affidavit set forth enough facts to enable the Supreme Court to determine that the plaintiff alleged a viable cause of action (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 71; Neuman v Zurich N. Am., 36 AD3d 601, 602).

Deutsche Bank Natl. Trust Co. v Rudman2011 NY Slip Op 00346 (App. Div., 2nd 2011) 

In this action to foreclose a mortgage, the appellants did not answer the complaint until more than eight weeks after their time to do so expired and, even after their untimely answer was immediately rejected, they took no action to remedy their default until many months later. A defendant who seeks to extend the time to appear or to compel acceptance of an untimely answer must provide a reasonable excuse for the default and show a potentially meritorious defense (see Maspeth Fed. Sav. & Loan Assn. v McGown, 77 AD3d 889). Here, the appellants failed to offer any excuse for their failure to timely answer the complaint (id.see Emigrant Mtge. Co., Inc. v Teel, 74 AD3d 1275, 1276). Since the appellants failed to offer a reasonable excuse, it is unnecessary to consider whether they demonstrated the existence of a potentially meritorious defense (see Maspeth Fed. Sav. & Loan Assn. v McGown, 77 AD3d at 889).

Accordingly, the Supreme Court properly denied the appellants' cross motion, inter alia, to vacate their default in answering and extend their time to answer, and properly granted the plaintiff's motion for leave to enter a judgment of foreclosure and sale against the appellants. 

Stamulis v Mordred Realty Corp., 2011 NY Slip Op 00374 (App. Div., 2nd 2011)

In order to prevail on a motion to vacate a default judgment, a defendant is required to demonstrate both a reasonable excuse for its default and a potentially meritorious defense (see Fekete v Camp Skwere, 16 AD3d 544, 545; Amato v Fast Repair, Inc., 15 AD3d 429, 430; Costanza v Gold, 12 AD3d 551, 552; Czarnik v Urban, 10 AD3d 627). Here, the confusion surrounding the withdrawal of defense counsel from the case and the plaintiff's apparent failure to comply with CPLR 321(c) provided a sufficient excuse for the defaults. In addition, the appellants established the existence of potentially meritorious defenses based on a close reading of the subject lease. Therefore, the Supreme Court should have denied the plaintiff's motion and granted the appellants' cross motion. 

 Matter of Brodsky v New York City Campaign Fin. Bd., 2011 NY Slip Op 00256 (App. Div., 1st 2011)

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered December 16, 2009, which, to the extent appealed from, granted respondent's motion to compel petitioner Meryl Brodsky to completely and accurately respond to an information subpoena and questionnaire (CPLR 5224), and denied said petitioner's cross motion to quash the subpoena and vacate the underlying judgment, same court and Justice, entered August 31, 2009, unanimously affirmed, without costs.

Petitioner waived her objection to Supreme Court's jurisdiction over her by failing to raise it in her opposition to respondent's motion (see CPLR 3211[e]Matter of United Servs. Auto. Assn. v Kungel, 72 AD3d 517, 518 [2010]).

Petitioner has not been prejudiced by any technical defects in the judgment in connection with which the information subpoena was served.


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