M&T Bank v Crespo, 2020 NY Slip Op 01608 [2d Dept. 2020]
“CPLR 5015(a) authorizes a court to relieve a party from an order or judgment, on motion, based on the existence of specified grounds[, including]: . . . newly discovered evidence (see CPLR 5015[a]); [and] fraud, misrepresentation, or other misconduct of an adverse party (see CPLR 5015[a])” (Bank of N.Y. Mellon Trust Co., N.A. v Thonfeld, 172 AD3d 665, 666). “A party seeking to vacate a judgment pursuant to CPLR 5015(a)(2) must establish, inter alia, that the newly discovered evidence probably would have produced a different result” (OneWest Bank, FSB v Galloway, 148 AD3d 818, 819; see Wall St. Mtge. Bankers, Ltd. v Rodgers, 148 AD3d 1088, 1089; Meltzer v Meltzer, 140 AD3d 716, 717).
Here, we agree with the Supreme Court’s determination granting the plaintiff’s motion for a judgment of foreclosure and sale and denying the defendant’s cross motion. The defendant failed to demonstrate that the newly discovered evidence probably would have produced a different result (see Wall St. Mtge. Bankers, Ltd. v Rodgers, 148 AD3d at 1089; OneWest Bank, FSB v Galloway, 148 AD3d at 819; Meltzer v Meltzer, 140 AD3d at 717). Further, the defendant failed to establish that the plaintiff engaged in any fraud, misrepresentation, or other misconduct warranting vacatur of the judgment pursuant to CPLR 5015(a)(3) (see Deutsche Bank Natl. Trust Co. v Conway, 169 AD3d 641, 642; Kondaur Capital Corp. v Stewart, 166 AD3d 748, 750; Bank of N.Y. Mellon Trust Co., N.A. v Sukhu, 163 AD3d 748, 751).
Maruf v E.B. Mgt. Props., LLC, 2020 NY Slip Op 01610 [2d Dept. 2020]
A party seeking to vacate an order entered upon his or her default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious [*2]opposition to the motion (see CPLR 5015[a]; Seaman v New York Univ., 175 AD3d 1578, 1579). Law office failure may qualify as a reasonable excuse for a party’s default if the claim of such failure is supported by a credible explanation of the default (see Singh v Sukhu, ___ AD3d ___, 2020 NY Slip Op 01105 [2d Dept 2020]). Nevertheless, ” [w]hile CPLR 2005 allows courts to excuse a default due to law office failure, it was not the Legislature’s intent to routinely excuse such defaults, and mere neglect will not be accepted as a reasonable excuse'” (Ortega v Bisogno & Meyerson, 38 AD3d 510, 511, quoting Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553, 553-554; see Bank of N.Y. Mellon Trust Co., N.A. v Talukder, 176 AD3d 772, 774; Seaman v New York Univ., 175 AD3d at 1579).
Here, the plaintiff’s counsel asserted that they failed to oppose the defendant’s motion because they had the action marked in their calendaring system as “stayed.” However, the plaintiff’s counsel made no effort to explain if or why the action remained marked as stayed after having entered into the January 10, 2017, stipulation lifting the stay on motion practice. Further, the plaintiff’s counsel appeared on the return date of the motion to strike the complaint, despite allegedly believing that motion practice was stayed, and the matter was adjourned so as to allow the plaintiff additional time to oppose the motion. Notwithstanding the adjournment, the plaintiff failed to file opposition papers. The plaintiff also did not offer any excuse for the nine-month delay in moving to vacate the default (see Nanas v Govas, 176 AD3d 956, 957). Under these circumstances, the plaintiff failed to offer a reasonable excuse for his default.
In any event, the plaintiff failed to demonstrate a potentially meritorious defense to the motion to strike the complaint. Before a court invokes the drastic remedy of striking a pleading, there must be a clear showing that the failure to comply with discovery was willful and contumacious (see Harris v City of New York, 117 AD3d 790; Almonte v Pichardo, 105 AD3d 687, 688). Willful and contumacious conduct may be inferred from a party’s repeated failure to comply with discovery, coupled with inadequate explanations for those failures, or a failure to comply with discovery over an extended period of time (see Teitelbaum v Maimonides Med. Ctr., 144 AD3d 1013; Orgel v Stewart Tit. Ins. Co., 91 AD3d 922, 923). Here, on his motion to vacate, the plaintiff did not provide an explanation for his failure to comply with discovery over the course of one year, despite four stipulations requiring the disclosure (see Orgel v Stewart Tit. Ins. Co., 91 AD3d at 924).