5015 and Defaults

Pichardo-Garcia v Josephine's Spa Corp., 2012 NY Slip Op 00004 (1st Dept., 2012)

In the absence of a determination by the motion court, pursuant to CPLR 5015(a)(1), of the reasonableness of plaintiff's proffered excuse for her failure to appear at a scheduled compliance conference, we reject the claim of law office failure as "conclusory and perfunctory" (see Perez v New York City Hous. Auth., 47 AD3d 505, 505 [2008]). Counsel explained that the failure to appear was due to a conflict between scheduled appearances in this action and in an unrelated action. However, he did not state that he took any steps to resolve or alleviate the conflict or that he was unaware of the conflict. Counsel's "overbooking of cases and inability to keep track of his appearances" does not constitute a reasonable excuse for the failure to appear (id.; see also Youni Gems Corp. v Bassco Creations Inc., 70 AD3d 454, 455 [2010], lv dismissed 15 NY3d 863 [2010]). Moreover, plaintiff made no attempt to vacate the default until almost a year after being served with the notice of its entry (see Youni, 70 AD3d at 455).

Kohn v Tri-State Hardwoods, Ltd., 2012 NY Slip Op 00933 (2nd Dept., 2012)

It is undisputed that the plaintiff defaulted in serving a reply to the appellant's counterclaim and that the appellant failed to move for leave to enter a default judgment on the counterclaim within one year after the default. Since the appellant failed to make a timely motion for leave to enter a default judgment, it was required to demonstrate a reasonable excuse for its delay in seeking a default judgment and a potentially meritorious claim (see Giglio v NTIMP, Inc., 86 AD3d 301, 308; Costello v Reilly, 36 AD3d 581; Iorizzo v Mattikow, 25 AD3d 762, 763; Oparaji v Madison Queens-Guy Brewer, 293 AD2d 591, 592). The appellant failed to demonstrate a reasonable excuse for its delay of over two years after the one-year statutory time period had expired (see Butindaro v Grinberg, 57 AD3d 932, 933; Mattera v Capric, 54 AD3d 827, 828; Lugauer v Forest City Ratner Co., 44 AD3d 829, 830; Opia v Chukwu, 278 AD2d 394). Accordingly, the appellant's motion for leave to enter a default judgment on the counterclaim was properly denied.

2261 Palmer Ave. Corp. v Malick, 2012 NY Slip Op 00506 (2nd Dept., 2012)

In order to vacate her default in appearing or answering the complaint, the defendant was required to demonstrate both a reasonable excuse for the default and the existence of a potentially meritorious defense to the action (see CPLR 5015[a][1]; Bank of Am. v Faracco, 89 AD3d 879; Community Preserv. Corp. v Bridgewater Condominiums, LLC, 89 AD3d 784; see also Swensen v MV Transp., Inc., 89 AD3d 924). Even if the defendant demonstrated a reasonable excuse for her default, our review of the record establishes that she failed to demonstrate a potentially meritorious defense to the action. The papers submitted in support of her cross motion, inter alia, to vacate her default in appearing or answering the compalint were replete with self-serving, vague, and unsubstantiated denials and unsupported legal conclusions as to whether a potentially meritorious defense to the action existed, and were thus an insufficient basis for vacating her default (see Thapt v Lutheran Med. Ctr., 89 AD3d 837; Garal Wholesalers, Ltd. v Raven Brands, Inc., 82 AD3d 1041).

Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion which was pursuant to CPLR 3215 for leave to enter a default judgment, and properly denied that branch of the defendant's cross motion which was to vacate her default in appearing or answering the complaint.

Toll Bros., Inc. v Dorsch, 2012 NY Slip Op 00359 (2nd Dept., 2012)

"A defendant seeking to vacate a default pursuant to CPLR 5015(a)(1) must demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action" (Clover M. Barrett, P.C. v Gordon,AD3d, 2011 NY Slip Op 09581, *1 [2d Dept 2011]; see Development Strategies Co., LLC, Profit Sharing Plan v Astoria Equities, Inc., 71 AD3d 628). "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" (Dimitriadis v Visiting Nurse Serv. of N.Y., 84 AD3d 1150, 1150-1151; see U.S. Bank, N.A. v Dick, 67 AD3d 900, 902; Moore v Day, 55 AD3d 803, 804).

Here, the defendant established both a reasonable excuse for the default, and the [*2]existence of a potentially meritorious defense to the action. Further, there was no showing by the plaintiff that it was prejudiced by the default or that the default was willful, and public policy favors the resolution of cases on their merits (see Dimitriadis v Visiting Nurse Serv. of N.Y., 84 AD3d at 1151; Moore v Day, 55 AD3d at 805; Li Gang Ma v Hong Guang Hu, 54 AD3d 312, 313; Ahmad v Aniolowiski, 28 AD3d 692, 693). Accordingly, under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying that branch of the defendant's motion which was pursuant to CPLR 5015(a)(1) to vacate his default.

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