5015; 3012; and a Sur-Reply

CPLR § 3012 Service of pleadings and demand for complaint
(d) Extension of time to appear or plead

CPLR R. 5015 Relief from judgment or order

Garal Wholesalers, Ltd. v Raven Brands, Inc., 2011 NY Slip Op 02349 (App. Div., 2nd 2011)

A party seeking to vacate a default in appearing or answering and to serve a late answer must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action (see CPLR 5015[a][1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141; Heidari v First Advance Funding Corp., 55 AD3d 669; Levi v Levi, 46 AD3d 519; 599 Ralph Ave. Dev., LLC. v 799 Sterling Inc., 34 AD3d 726; New York & Presbyt. Hosp. v Travelers Prop. Cas. Ins. Co., 27 AD3d 708). The good-faith belief of the president of the defendant Raven Brands, Inc. (hereinafter Raven), that his telephone conversation with the plaintiff's attorney and his subsequent letters denying the allegations in the complaint were sufficient to answer the complaint did not constitute a sufficient excuse for the default, particularly since the plaintiff's attorney responded by letter stating that Raven was in default in answering the complaint (see Tucker v Rogers, 95 AD2d 960). Furthermore, Raven's erroneous assumptions regarding the validity of the action and the need to defend did not constitute reasonable excuses for its default in answering and for its almost four-month delay in appearing in this action (see Yao Ping Tang v Grand Estate, LLC, 77 AD3d 822, 823; Awad v Severino, 122 AD2d 242; Passalacqua v Banat, 103 AD2d 769). Moreover, the affidavit of Raven's president, which contained only conclusory assertions without any evidentiary support, was insufficient to establish a potentially meritorious defense to the action (see Kolajo v City of New York, 248 AD2d 512, 513; Peterson v Scandurra Trucking Co., 226 AD2d 691, 692; Lener v Club Med, 168 AD2d 433, 435).

Pena-Vazquez v Beharry, 2011 NY Slip Op 02462 (App. Div., 1st, 2011)

The court providently exercised its discretion in denying plaintiffs' motion and deeming defendants' answer timely served nunc pro tunc. Plaintiffs' acceptance of defendants' answer, without objection, constituted a waiver of the late service and default (see Ligotti v Wilson, 287 AD2d 550, 551 [2001]). In any event, the settlement discussions between plaintiffs and defendants' insurer constitute a reasonable excuse for defendants' delay in answering (see CPLR 3012[d]; see also Finkelstein v East 65th St. Laundromat, 215 AD2d 178 [1995]). Contrary to plaintiffs' contention, defendants were not required to demonstrate the existence of a meritorious defense (see Verizon N.Y. Inc. v Case Constr. Co., Inc., 63 AD3d 521 [2009]).

The court providently exercised its discretion in considering defendants' surreply. The court granted permission for the filing of the surreply, which contained courtesy copies of affidavits that had been filed with the Clerk prior to the motion return date (see generally Barbuto v Winthrop Univ. Hosp., 305 AD2d 623, 623-624 [2003]).

I missed this case, but found it on JT's blog.

Ferdico v Zweig, 2011 NY Slip Op 02621 (App. Div., 2nd 2011)

The Supreme Court providently exercised its discretion in denying that branch of the cross motion of the defendants Brian Mullen and Marybeth Mullen (hereinafter together the Mullens) which was to vacate a judgment dated March 11, 2009, pursuant to CPLR 5015(a)(2). The Mullens failed to establish, inter alia, that the purportedly newly discovered evidence, a report of an alleged handwriting expert concluding that the alleged signature of Morris Zweig on a contract of sale dated July 15, 2004, that had been attached as an exhibit to the plaintiffs' complaint was a forgery, could not have been discovered earlier through the exercise of due diligence (see Sicurelli v Sicurelli, 73 AD3d 735; Vogelgesang v Vogelgesang, 71 AD3d 1132, 1133-1134; Sieger v Sieger, 51 AD3d 1004, 1005; Matter of State Farm Ins. Co. v Colangelo, 44 AD3d 868). The Supreme Court also properly denied that branch of the Mullens' cross motion which was to vacate the judgment dated March 11, 2009, pursuant to CPLR 5015(a)(3), as they failed to establish that the judgment was procured as a result of fraud, misrepresentation, or other improper conduct (see Matter of Johnson v New York City Dept. of Educ., 73 AD3d 927, 928; Sicurelli v Sicurelli, 73 AD3d 735; Matter of Tellez, 56 AD3d 678).

The Supreme Court also properly denied that branch of the Mullens' cross motion which was to renew their motion for summary judgment dismissing the complaint insofar as asserted against them and their opposition to the plaintiffs' motion for summary judgment on the first cause of action for specific performance of the contract of sale dated July 15, 2004, as they failed to set forth both "new facts not offered on the prior motion[s] that would change the prior determination" and a "reasonable justification for the failure to present such facts on the prior motion[s]" (CPLR 2221[e][2], [3]; see Bank of Am., N.A., USA v Friedman, 44 AD3d 696; Yarde v New York City Tr. Auth., 4 AD3d 352, 353; Johnson v Marquez, 2 AD3d 786, 788-789; Riccio v DePeralta, 274 AD2d 384). The Mullens failed to set forth a reasonable justification as to why they did not previously obtain the report of their alleged handwriting expert in time to submit it in support of their original cross motion or in opposition to the plaintiffs' original motion, given that the contract of sale analyzed by their alleged expert was attached as an exhibit to the complaint in the instant action.

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