5015(a)(1)(4)

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

Mr. Ho Charter Serv., Inc. v Ho, 2012 NY Slip Op 03102 (1st Dept., 2012)

The order entered on or about August 1, 2011 is nonappealable, as it was entered on default within the meaning of CPLR 5511 (see Armin A. Meizlik Co. Inc. v L & K Jewelry Inc., 68 AD3d 530, 531 [2009]).

The motion to vacate the order entered on or about August 1, 2011 should have been granted, as defendant demonstrated a meritorious defense and a reasonable excuse for failing to appear at a preliminary conference (see Armin, 68 AD3d at 531; CPLR 5015[a][1]). Defendant showed that his failure to appear was neither willful nor a pattern of dilatory behavior, but was simply the result of illness and inadvertent law office failure. Indeed, defendant submitted affirmations by his attorneys stating that they failed to note the scheduled preliminary conference date set forth in two prior orders, that the primary attorney assigned to the case was sick and unable to attend the scheduled conference, and that a substitute attorney from the same law office had advised the court that she would not be able to arrive to the conference by the scheduled time (see Armin, 68 AD3d at 531; Chelli v Kelly Group, P.C., 63 AD3d 632 [2009]). 

Plaintiff's corporate records and the affidavits based on personal knowledge submitted by the parties, together with prior orders of the court that evaluated the evidence and denied plaintiff injunctive relief, demonstrate merit to the defense.

Feldman v Delaney, 2012 NY Slip Op 03133 (2nd Dept., 2012)

In an action to recover damages for medical malpractice, etc., the plaintiff Tuvia Feldman appeals from an order of the Supreme Court, Westchester County (Colabella, J.), entered April 15, 2011, which denied his motion (1) to vacate an order of the same court dated December 21, 2009, granting the application of the defendants Veronica B. Delaney, Nephrology Associates of Westchester, and Praveen Chander pursuant to 22 NYCRR 202.27 to dismiss the complaint insofar as asserted against those defendants upon his failure to proceed with the trial, and (2) to restore the action to the trial calendar.

ORDERED that the order entered April 15, 2011, is affirmed, with costs.

The appellant's motion, inter alia, to vacate an order dated December 21, 2009, granting the application of the defendants Veronica B. Delaney, Nephrology Associates of Westchester, and Praveen Chander pursuant to 22 NYCRR 202.27 to dismiss the complaint insofar as asserted against them, was properly denied, as it was not made within one year after service of a copy of the order with notice of entry (see CPLR 5015[a][1]; Wold v City of New York, 85 AD3d 776, 777; Valentin v City of New York, 73 AD3d 755, 756; Cazeau v Paul, 2 AD3d 477, 478; Lopez v Imperial Delivery Serv., 282 AD2d 190, 197). Furthermore, the one-year time period should not be extended in the exercise of discretion, since the appellant failed to demonstrate a reasonable excuse for his lengthy delay in moving, among other things, to vacate the order dated December 21, 2009 (see Valentin v City of New York, 73 AD3d at 756; Leinas v Long Is. Jewish Med. Ctr., 72 AD3d 905, 906; Carter v City of New York, 231 AD2d 485, 486). In any event, the appellant failed to demonstrate a reasonable excuse for his failure to proceed with the trial and a potentially meritorious cause of action (see CPLR 5015[a][1]; Schmitt v Jeyalingam, 71 AD3d 757; Nowell v NYU Med. Ctr., 55 AD3d 573, 574; Santiago v Santana, 54 AD3d 929, 930; Bollino v Hitzig, 34 AD3d 711).

Prudence v Wright, 2012 NY Slip Op 03157 (2nd Dept., 2012)

Where, as here, a defendant moves to vacate a judgment entered upon his or her default in appearing or answering the complaint on the ground of lack of personal jurisdiction, the defendant is not required to demonstrate a reasonable excuse for the default and a potentially meritorious defense (see Harkless v Reid, 23 AD3d 622, 622-623; Steele v Hempstead Pub Taxi, 305 AD2d 401, 402). Contrary to the determination of the Supreme Court, the defendant established entitlement to relief from default on the ground that she was not properly served with the summons and complaint pursuant to CPLR 308(4). The affidavit of service of the plaintiff's process server alleged that the process server attempted to deliver the summons and complaint to the defendant at her "dwelling house" or "usual place of abode," rather than her actual place of business, on January 19, 2009, at 7:17 P.M., January 26, 2009, at 6:51 A.M., and February 25, 2009, at 4:03 P.M. After all three unsuccessful attempts, the process server affixed a copy of the summons and complaint to the defendant's door and mailed a copy to the same address, which was alleged to be the defendant's "last known residence." Contrary to these averments in the affidavit of service, the defendant presented proof, inter alia, that the address where service was attempted, as alleged in the affidavit of service, was in fact her office address.

The defendant established that the plaintiff's process server failed to exercise "due diligence" in attempting to effectuate service pursuant to CPLR 308(1) or (2) before using the "affix and mail" method pursuant to CPLR 308(4) (JPMorgan Chase Bank, N.A. v Iancu Pizza, Ltd., 78 AD3d 902, 903 [internal quotation marks omitted]; see Lombay v Padilla, 70 AD3d 1010, 1012). [*2]Due diligence was not exercised because two of the three attempts at service were at times when the defendant could not reasonably be expected to be at work, a national holiday (January 19, 2009) and at 6:51 A.M. on January 26, 2009 (see Krisilas v Mount Sinai Hosp., 63 AD3d 887, 889; O'Connell v Post, 27 AD3d 630; Earle v Valente, 302 AD2d 353; Annis v Long, 298 AD2d 340). Furthermore, no attempt to effectuate service was made at the defendant's actual "dwelling place or usual place of abode" (JPMorgan Chase Bank, N.A. v Iancu Pizza, Ltd., 78 AD3d at 903 [internal quotation marks omitted]; see Earle v Valente, 302 AD2d at 353), nor did the process server make genuine inquiries to ascertain the defendant's actual residence or place of employment (see McSorley v Spear, 50 AD3d 652, 654; Estate of Edward S. Waterman v Jones, 46 AD3d 63, 66).

Under these circumstances, the service of the summons and complaint pursuant to CPLR 308(4) was defective as a matter of law (see JPMorgan Chase Bank, N.A. v Iancu Pizza, Ltd., 78 AD3d at 903; Earle v Valente, 302 AD2d at 354; Gurevitch v Goodman, 269 AD2d 355, 356). Since the Supreme Court had not acquired personal jurisdiction over the defendant, the default judgment entered against her was a nullity (see Fleisher v Kaba, 78 AD3d 1118, 1120; Steele v Hempstead Pub Taxi, 305 AD2d at 402). Accordingly, the defendant's motion, in effect, to vacate the judgment entered upon her default and to dismiss the complaint on the ground of lack of personal jurisdiction should have been granted.

We note that the action was timely commenced by filing the summons and complaint in the office of the Clerk of Kings County. Under the circumstances of this case, despite the dismissal of the complaint on the ground of lack of personal jurisdiction, the plaintiff should be permitted, if she be so advised, to re-serve the appellant within 120 days of the date of this decision and order (see CPLR 306-b; Gurevitch v Goodman, 269 AD2d at 356).

Rocco v Family Foot Ctr., 2012 NY Slip Op 03161 (2nd Dept., 2012)

Almost a year later, on April 20, 2010, Lombardi served the plaintiff with a copy of the order entered May 22, 2009, with notice of entry. The plaintiff was unaware that the complaint had been dismissed until she received the notice of entry of the order. The plaintiff then moved by notice of motion dated May 14, 2010, (a) pursuant to CPLR 5015(a)(1) to vacate the order entered May 22, 2009, (b) to restore the action to the trial calendar, and (c) pursuant to CPLR 3124 to compel Zawada to appear for a deposition. In the order appealed from, the Supreme Court denied the plaintiff's motion. The plaintiff appeals, and we reverse.

In order to vacate a default in opposing a motion pursuant to CPLR 5015(a)(1), the moving party is required to demonstrate a reasonable excuse for his or her default and a potentially meritorious opposition to the motion (see Thapt v Lutheran Med. Ctr., 89 AD3d 837, 837; Bazoyah v Herschitz, 79 AD3d 1081, 1081; Raciti v Sands Point Nursing Home, 54 AD3d 1014; Montague v Rivera, 50 AD3d 656, 657; St. Rose v McMorrow, 43 AD3d 1146). Here, the plaintiff established that her failure to oppose Zawada's motion was neither willful nor deliberate (see Raciti v Sands Point Nursing Home, 54 AD3d 1014; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389; Franco Belli Plumbing & Heating & Sons, Inc. v Imperial Dev. & Constr. Corp., 45 AD3d 634). Her attorney's affirmation established that the failure of the attorney's firm to diary the return date of Zawada's motion was inadvertent and an isolated incident.

The plaintiff also established that her opposition to Zawada's motion was potentially meritorious. In opposition to a motion pursuant to CPLR 3404 to dismiss the complaint for failure to prosecute, the plaintiff must "demonstrate a [potentially] meritorious cause of action, a reasonable excuse for the delay, and a lack of intent to abandon the action, and that the defendant[] would not be prejudiced by the delay" (Botsas v Grossman, 51 AD3d 617, 617). Here, the plaintiff demonstrated through the affidavit of her expert that she had a potentially meritorious cause of action (see Kahgan v Alwi, 67 AD3d 742; Rodriguez v United Parcel Serv., Inc. of Ohio, 17 AD3d 658, 658; Sanchez v Denkberg, 284 AD2d 446). The plaintiff also demonstrated a reasonable excuse for her delay in moving to restore the action to the trial calendar and her lack of intent to abandon the action through her attorney's affirmation and exhibits presented on the motion and in reply, which showed that her attorney had been diligently attempting to schedule the depositions, but was unable to do so as of the date of Zawada's motion (see Kahgan v Alwi, 67 AD3d 742; Rodriguez v United Parcel Serv., Inc. of Ohio, 17 AD3d at 658; Sanchez v Denkberg, 284 AD2d 446). In addition, the plaintiff demonstrated that Zawada and Lombardi would not suffer any prejudice if the action was restored to the trial calendar (see Kahgan v Alwi, 67 AD3d 742; Rodriguez v United Parcel Serv., Inc. of Ohio, 17 AD3d at 658; Sanchez v Denkberg, 284 AD2d 446). The plaintiff also acted promptly to cure her default upon learning of it (see Raciti v Sands Point Nursing Home, 54 AD3d at 1014). [*3]

In light of the foregoing, the plaintiff established that the Supreme Court improvidently exercised its discretion by denying those branches of her motion which were pursuant to CPLR 5015(a)(1) to vacate the order entered May 22, 2009, and to restore the action to the trial calendar (see Kahgan v Alwi, 67 AD3d 742). The Supreme Court also improvidently exercised its discretion in denying that branch of the plaintiff's motion which was pursuant to CPLR 3124 to compel Zawada to appear for a deposition before trial given Zawada's failure to comply with prior court orders (see CPLR 3124).

Accordingly, the Supreme Court should have granted the plaintiff's motion, and thereupon denied Zawada's motion to dismiss the complaint for failure to prosecute, and we remit the matter to the Supreme Court, Queens County, to schedule depositions.

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