5015

CPLR R. 5015 Relief from judgment or order
(a) On motion
(1) excusable default…
(2) newly-discovered evidence…
(3) fraud, misrepresentation, or other misconduct of an adverse party
(4) lack of jurisdiction to render the judgment or order
(5) reversal, modification or vacatur of a prior judgment or order upon which it is based

CPLR § 3126 Penalties for refusal to comply with order or to disclose

Dimitriadis v Visiting Nurse Serv. of N.Y., 2011 NY Slip Op 04410 (App. Div., 2nd 2011)

A motion to vacate a default is addressed to the sound discretion of the Supreme Court (see Gerdes v Canales, 74 AD3d 1017; Scala v 4020 Jerusalem Owners, Inc., 72 AD3d 926, 927; Matter of Lee v Morgan, 67 AD3d 681, 682; Holt Constr. Corp. v J & R Music World, 294 AD2d 540). To obtain relief from a default pursuant to CPLR 5015(a)(1), the moving defendant must demonstrate a reasonable excuse for the default and the existence of a potentially meritorious defense to the action (see Felsen v Stop & Shop Supermarket Co., LLC,AD3d, 2011 NY Slip Op 02840 [2d Dept 2011]; Westchester Med. Ctr. v Allstate Ins. Co., 80 AD3d 695, 696; Farrah v Pinos, 78 AD3d 1115; Francis v Long Is. Coll. Hosp., 45 AD3d 529, 530). Other factors which the court should consider include whether the default prejudiced the opposing party, whether it was willful or evinced an intent to abandon the litigation, and whether vacating the default would serve the strong public policy of resolving cases on their merits when possible (see U.S. Bank, N.A. v Dick, 67 AD3d 900, 902; Klughaupt v Hi-Tower Contrs., Inc., 64 AD3d 545, 546; Westchester Med. Ctr. v Hartford Cas. Ins. Co., 58 AD3d 832, 832-833; Moore v Day, 55 AD3d 803, 804).

Contrary to the plaintiffs' contentions, the Supreme Court providently exercised its discretion in granting the defendant's motion to vacate its default. The defendant established a reasonable excuse for the default, and the affidavit of its expert demonstrated the existence of a potentially meritorious defense. Furthermore, the record does not indicate that the plaintiffs were prejudiced by the default or that the default was willful or part of a pattern of neglect, and the vacatur of the default advances the public policy of resolving actions on their merits (see e.g. Dorio v County of Suffolk, 58 AD3d 594, 595; Li Gang Ma v Hong Guang Hu, 54 AD3d 312, 313; Verde Elec. Corp. v Federal Ins. Co., 50 AD3d 672, 673; Cooney v Cambridge Mgt. & Realty Corp., 35 AD3d 522, 523).

Assael v 15 Broad St., LLC, 2011 NY Slip Op 03984 (App. DIv., 2nd 2011)

Upon the plaintiff's appeal, in a decision and order dated March 16, 2010, this Court determined that the defendant's motion to vacate the default judgment should have been denied (see Assael v 15 Broad St., LLC, 71 AD3d 802). Following that appeal, the plaintiff sought to collect the proceeds of the subject bond. The defendant moved, inter alia, to discharge the subject bond, arguing that it had been issued as a condition of vacating the default judgment. The Supreme Court, among other things, granted that branch of the defendant's motion which was to discharge the subject bond. We affirm the order insofar as appealed from.

"A court which renders a judgment or order may relieve a party from it upon such terms as may be just'(CPLR 5015[a]), including the imposition of a bond or undertaking" (Doris v Lewis, 76 AD3d 536, 537; see Yadid, LLC v GCW Bell Corp., 48 AD3d 799, 800; Testwell Craig Labs. v Charles Assoc., 264 AD2d 836, 837). Here, the Supreme Court directed the defendant to post a bond "as a condition of vacatur" of the default judgment. However, upon this Court's decision and order dated March 16, 2010, determining that the defendant's motion to vacate the aforementioned default judgment should have been denied, the parties were, in effect, returned to the status quo ante, namely, that prior to the defendant's motion to vacate its default. Accordingly, the Supreme Court properly granted that branch of the defendant's motion which was to discharge the subject bond.

Ogunmoyin v 1515 Broadway Fee Owner, LLC, 2011 NY Slip Op 05469 (App. Div., 2nd 2011)

While law office failure can be accepted as a reasonable excuse in the exercise of a court's sound discretion, the movant must submit supporting facts to explain and justify the default, and mere neglect is not accepted as a reasonable excuse (see Morrison v Rosenberg, 278 AD2d 392, 392; Cole-Hatchard v Grand Union, 270 AD2d 447, 447; De Vito v Marine Midland Bank, 100 AD2d 530, 531).

Here, the plaintiff's proffered excuse of law office failure was vague and unsubstantiated and, thus, did not constitute a reasonable excuse for the default (see Knowles v Schaeffer, 70 AD3d 897, 898; Chechen v Spencer, 68 AD3d 801, 802; Murray v New York City Health & Hosps. Corp., 52 AD3d 792, 793; St. Luke's Roosevelt Hosp. v Blue Ridge Ins. Co., 21 AD3d 946, 947). Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiff's motion to vacate so much of the order dated November 13, 2009, as was entered upon her default in opposing the defendants' separate motions for summary judgment dismissing the complaint (see Star Indus., Inc. v Innovative Beverages, Inc., 55 AD3d 903, 904; Antoine v Bee, 26 AD3d 306; Matter of Hye-Young Chon v Country-Wide Ins. Co., 22 AD3d 849).

Tribeca Lending Corp. v Bartlett, 2011 NY Slip Op 03896 (App. DIv., 1st 2011)

To the extent that defendant's motion to vacate can be construed as based on lack of jurisdiction, pursuant to CPLR 5015(a)(4), the motion fails because defendant formally appeared in this action in June 2007 when he served an answer (see CPLR 320). The fact that an order was entered in January 2008
striking his answer does not vitiate defendant's formal appearance or divest the court of personal jurisdiction over him.

Stasiak v Forlenza, 2011 NY Slip Op 04448 (App. Div., 2nd 2011

The order dated January 12, 2009, granting the wife's unopposed motion, in effect, for summary judgment on the complaint, was rendered at a time when the proceedings were stayed pursuant to both the order dated January 8, 2009, and CPLR 321(c) (see Moray v Koven & Krause, Esqs., 15 NY3d 384, 388-390; Albert v Albert, 309 AD2d 884, 886; Chavoustie v Shaad, 133 AD2d 532). Thus, the Supreme Court erred in issuing the judgment entered March 2, 2009, upon the order dated January 12, 2009. Accordingly, the Supreme Court should have granted that branch of the husband's motion which was to vacate the judgment entered on March 2, 2009, pursuant to CPLR 5015(a) in the interests of substantial justice (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 68; Wade v Village of Whitehall, 46 AD3d 1302, 1303; F & C Gen. Contrs. Corp. v Atlantic Mut. Mtge. Corp., 202 AD2d 629, 630; Lane v Lane, 175 AD2d 103, 105).

The Supreme Court also erred in issuing the judgment entered July 8, 2009. At the time of the inquest, the wife had already been granted all of the relief she requested in the complaint, and the husband had no notice that the wife would be seeking an additional award far greater than that sought in the complaint. Moreover, the husband had no representation at the inquest, and did not ask any questions or present any evidence. Based on the wife's testimony that she was owed a particular amount, the Supreme Court awarded her all of the sums that could potentially become due over the 10-year period following the date of the separation agreement. Because the separation agreement did not contain an acceleration clause, the wife was not entitled to these sums at time she made the request (see Long Is. R.R. Co. v Northville Indus. Corp., 41 NY2d 455, 466; McCready v Lindenborn, 172 NY 400, 408; Runfola v Cavagnaro, 78 AD3d 1035; Zarembka v Zarembka, 81 AD2d 742; Gutman v Gutman, 51 AD2d 535, 536). Further, the amount awarded in the judgment entered July 8, 2009, was based on the assumption that the husband would be required to pay the maximum $1,000 per month for the wife's health insurance premiums and $350 per month for the wife's cell phone expenses, while the evidence the wife submitted in support of her earlier motion, in effect, for summary judgment on the complaint showed that her actual monthly health insurance and cell phone expenses were usually substantially less than these amounts. Accordingly, the Supreme Court should have granted that branch of the husband's motion which was to vacate the judgment entered July 8, 2009, pursuant to CPLR 5015(a) in the interests of substantial justice (see Woodson v Mendon Leasing Corp., 100 NY2d at 68; Wade v Village of Whitehall, 46 AD3d at 1303; F & C Gen. Contrs. Corp. v Atlantic Mut. Mtge. Corp., 202 AD2d at 630; Lane v Lane, 175 AD2d at 105).

Rampersant v Nationwide Mut. Fire Ins. Co., 2010 NY Slip Op 02530 (App. Div., 2nd, 2010)

The defendant moved pursuant to 22 NYCRR 202.21(e), inter alia, to vacate the note of issue, contending that the plaintiff failed to comply with, among other things, certain demands for bank and credit card statements and authorizations for cellular phone records for the years 2005 and 2006. By order dated March 6, 2009, the Supreme Court granted the defendant's motion, inter alia, to vacate the note of issue only to the extent of directing the plaintiff to provide authorizations for the disclosure of his Wachovia Bank statements, credit card statements, and cellular phone records for the time period between January 1, 2006, and August 2006. The defendant subsequently moved, inter alia, to modify the order dated March 6, 2009, to extend the time period of disclosure to include August 1, 2005, through December 31, 2005. In support thereof, the defendant submitted the plaintiff's application for automobile insurance dated August 7, 2005, to demonstrate that the requested discovery was material and necessary to the defense of this action. The court denied that branch of the defendant's motion which was to modify the prior order.

The Supreme Court providently exercised its discretion in declining to vacate the note of issue, since it directed discovery to be completed by a date certain (see Joseph v Propst, 306 AD2d 246; Matter of Long Is. Light. Co. v Assessor of Town of Brookhaven, 122 AD2d 794, 795).

However, that branch of the defendant's motion which was to modify the order dated March 6, 2009, to extend the time period of disclosure to include August 1, 2005, through December 31, 2005, should have been granted (see CPLR 5015[a][4]). By submitting the plaintiff's application for insurance dated August 7, 2005, the defendant demonstrated that the disclosure sought for the time period between August 1, 2005, and December 31, 2005, was material and necessary to the defense of this action (see CPLR 3101[a]; Insurance Law § 3105[a]; Cain v United Ins. Co., 232 SC 397, 401, 102 SE2d 360; Barkan v New York Schools Ins. Reciprocal, 65 AD3d 1061, 1064; Tannenbaum v Provident Mut. Life Ins. Co. of Phila., 53 AD2d 86 affd 41 NY2d 1087).