CPLR R. 5015: to default or to vacate

You can never have enough of these decisions handy.

CPLR R. 5015

CPLR R. 3215

Maida v Lessing's Rest. Servs., Inc., 2011 NY Slip Op 00490 (App. Div., 2nd 2011)

To vacate the order entered upon its default in opposing the motion for leave to enter a default judgment, the defendant Lessing's Restaurant Services, Inc. (hereinafter the appellant), was required to demonstrate, inter alia, a reasonable excuse for its 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 707; Bekker v Fleischman, 35 AD3d 334; Epps v LaSalle Bus, 271 AD2d 400). In support of its motion, which was not made until nine months after the order granting the plaintiff's motion for leave to enter a default judgment, the appellant did not offer a reasonable excuse for its failure to appear or answer the complaint (see Gartner v Unified Windows, Doors & Siding, Inc., 71 AD3d 631, 632; Kramer v Oil Servs., Inc., 65 AD3d 523, 524; Leifer v Pilgreen Corp., 62 AD3d 759, 760; Martinez v D'Alessandro Custom Bldrs. & Demolition, Inc., 52 AD3d 786, 787; Segovia v Delcon Constr. Corp., 43 AD3d 1143, 1144). Accordingly, it is unnecessary to consider whether the appellant sufficiently demonstrated the existence of a potentially meritorious defense to the action (see Abdul v Hirschfield, 71 AD3d at 709; Segovia v Delcon Constr. Corp., 43 AD3d at 1144; American Shoring, Inc. v D.C.A. Constr., Ltd., 15 AD3d 431). In addition, contrary to the appellant's contention, the plaintiff's submissions in support of her motion for leave to enter a default judgment were sufficient. The verified complaint and the plaintiff's affidavit set forth sufficient 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). Accordingly, the Supreme Court providently exercised its discretion in denying the appellant's motion to vacate the order dated November 24, 2008.

CPLR R.3211(a)(8)

R. Scott Miterko v Peaslee, 2011 NY Slip Op 00492 (App. Div., 2nd 2011)

The Supreme Court properly denied the appellant's cross motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against it on the ground of lack of personal jurisdiction. In opposition to the appellant's cross motion asserting that service of process pursuant to CPLR 311(a)(1) was not properly effected, the plaintiffs established that valid service was made pursuant to Business Corporation Law § 306(b)(1) (see Perkins v 686 Halsey Food Corp., 36 AD3d 881).

However, the Supreme Court should not have granted the plaintiffs' motion for leave to enter a default judgment. To establish their entitlement to a default judgment, the plaintiffs were required to submit proof of service of the summons and the complaint, of the facts constituting the claim, and of the default (see CPLR 3215[f]; Levine v Forgotson's Cent. Auto & Elec., Inc., 41 [*2]AD3d 552, 553; 599 Ralph Ave. Dev., LLC v 799 Sterling Inc., 34 AD3d 726). The plaintiffs' initial moving papers for leave to enter a default judgment were predicated solely upon their assertion of proper personal service pursuant to CPLR 311(a)(1). They established, prima facie, their entitlement to a default judgment by submitting an affidavit of service attesting that the summons and complaint were delivered to a managing agent of the appellant, a copy of the verified complaint, and an attorney affirmation attesting to the appellant's default in answering the complaint (see CPLR 311[a][1]; Matone v Sycamore Realty Corp., 50 AD3d 978; McIntyre v Emanuel Church of God In Christ, Inc., 37 AD3d 562; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343, 343-344). In opposition, the appellant rebutted these allegations and raised issues of fact by submitting an affidavit from its president stating that the person upon whom service allegedly was made was not employed by the appellant, nor authorized to accept service of process on behalf of the appellant. The affidavit of the plaintiffs' process server submitted in reply to this opposition raised an additional issue of fact as to whether the recipient, if not a managing agent, was cloaked with an apparent authority to accept service on the appellant's behalf (see generally Fashion Page v Zurich Ins. Co., 50 NY2d 265, 271-273; McDonald v Ames Supply Co., 22 NY2d 111, 115-116; Aguilera v Pistilli Constr. & Dev. Corp., 63 AD3d 765, 766-767; Seda v Armory Estates, 138 AD2d 362, 363-364). Accordingly, a hearing is necessary to determine the issue of whether proper personal service was effected pursuant to CPLR 311(a)(1), solely for the purpose of determining the plaintiffs' entitlement to a default judgment (see McIntyre v Emanuel Church of God In Christ, Inc., 37 AD3d at 562-563; Garcia v Munseob, 33 AD3d 586; Mortgage Access Corp. v Webb, 11 AD3d 592, 593; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d at 343-344; Frankel v Schilling, 149 AD2d 657, 659).

Since the plaintiffs' assertion that they were entitled to a default judgment based on proper service pursuant to Business Corporation Law § 306(b)(1) was made in their reply papers supporting their motion, two days before the return date and the date of the order appealed from, and the appellant did not have an opportunity to respond, the Supreme Court should not have considered that claim in determining the motion (see Matter of Crawmer v Mills, 239 AD2d 844, 844-845; cf. Matter of Whittaker v New York City Bd. of Educ., 71 AD3d 776, 778; Valure v Century 21 Grand, 35 AD3d 591, 592).

The appellant's contention that the plaintiffs failed to state a cause of action insofar as asserted against it is raised for the first time on appeal and, thus, is not properly before this Court (see McLearn v Cowen & Co., 60 NY2d 686, 689; Viafax Corp. v Citicorp Leasing, Inc., 54 AD3d 846, 849; Resnick v Doukas, 261 AD2d 375, 376).

The bold is mine.

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