Appellate Division

Failure to follow CPLR R. 511 makes venue discretionary

CPLR R. 511 Change of place of trial

CPLR § 501 Contractual provisions fixing venue

Tatko Stone Prods., Inc. v Davis-giovinzazzo Constr. Co., Inc., 2009 NY Slip Op 06210 (App. Div., 3rd, 2009)

We note first that, having raised the issue of improper venue as an
affirmative defense in the answer, Great American did not waive the
issue and could thereafter rely upon this defense in seeking dismissal
of the action (see Lischinskaya v Carnival Corp., 56 AD3d 116, 118 [2008], lv denied
___ NY3d ___ [June 30, 2009]). In addition, as Great American did not
follow the precise statutory procedures outlined under CPLR 511 (see CPLR 511 [a], [b]), the relief sought in its application became a discretionary matter (see Callanan Indus. v Sovereign Constr. Co., 44 AD2d 292, 295 [1974])^[FN1]. While Supreme Court may have erred in deciding the matter on subject matter jurisdiction grounds (see Matter of Lucchese v Rotella, 97 AD2d 645, 646 [1983], affd
60 NY2d 815 [1983]), we find that dismissal of the complaint was
nevertheless warranted based on the venue provision of the bond (see CPLR 501; see also Dogmoch Intl. Corp. v Dresdner Bank AG, 304 AD2d 396, 397 [2003]; Premium Risk Group v Legion Ins. Co., 294 AD2d 345, 345-346 [2002]; B & H Interior Contr. v Yonkers Contr. Co., 234 AD2d 44, 45 [1996]; Alwinseal, Inc. v Travelers Indem. Co., 61 AD2d 803, 803-804 [1978]).

"It is well established that forum selection clauses are valid
absent a showing that enforcement would be unreasonable and unjust or
that the clause is invalid because of fraud or overreaching" (VOR Assoc. v Ontario Aircraft Sales & Leasing, 198 AD2d 638, 639 [1993] [citations omitted]; see Brooke Group v JCH Syndicate 488, 87 NY2d 530, 534 [1996]; Harry Casper, Inc. v Pines Assoc., L.P., 53 AD3d 764,
764-765 [2008]). Here, in seeking to enforce the bond as a third-party
beneficiary of it, plaintiff, in absence of any evidence of
unreasonableness, fraud or overreaching (compare 3H Enters. v Bennett, 276 AD2d 965, 966 [2000], lv denied 96 NY2d 710 [2001]), is bound by its forum selection provision (see B & H Interior Contr. v Yonkers Contr. Co., 234 AD2d at 45; Buhler v French Woods Festival of Performing Arts, 154 AD2d 303, 305 [1989]; Alwinseal, Inc. v Travelers Indem. Co., 61 AD2d at 803-804; Callanan Indus. v Sovereign Constr. Co., 44 AD2d at 294; Khan Enter. Constr., Inc. v P & K Contr., Inc., 13 Misc 3d 1207[A] [2006]; Flush Metal Partition Corp. v Nuovo Corp., 57 Misc 2d 900, 901 [1968]; Frontier Excavating v St. Paul Fire & Mar. Ins. Co., 50 Misc 2d 232, 233 [1966]; see generally Harry Casper, Inc. v Pines Assoc., L.P.,
53 AD3d at 765). As plaintiff has advanced unpersuasive grounds upon
which this Court might disregard the forum selection provision in the
bond, we affirm dismissal of the action (see e.g. Dogmoch Intl. Corp. v Dresdner Bank AG, 304 AD2d at 397; Premium Risk Group v Legion Ins. Co., 294 AD2d at 346; British W. Indies Guar. Trust Co. v Banque Internationale A Luxembourg, 172 AD2d 234, 234 [1991]; Di Ruocco v Flamingo Beach Hotel & Casino, 163 AD2d 270, 271-272 [1990]).

Particularly unpersuasive is plaintiff's claim that dismissal is
improper because Great American failed to demonstrate that the subject
bond was "properly authenticated." While it would have been preferable
for Great American to include the entire, properly-executed bond
agreement in its moving papers, we are unpersuaded that this omission
was fatal to the requested relief. First, there can be no real dispute
that a valid and enforceable surety bond exists; indeed, plaintiff is
relying upon it for relief in the first instance. More importantly,
Great American submitted an affidavit of a senior claims analyst who
averred that the subject bond contained a "venue provision" which
requires that this action be venued in New Jersey. The analyst attached
the relevant excerpt from a copy of the bond to his affidavit. This
evidence was sufficient for Great American to establish the precise
language of the subject forum selection clause.

A similar (sort of) issue popped up in the Second Department not too long ago.

The bold is mine.

CPLR R. 5015 motion treated as motion pursuant to CPLR R. 317

CPLR R. 2221(e) Motion for Leave to Renew

CPLR § 308 Personal service upon a natural person

CPLR R. 5015 Relief from judgment or order

CPLR § 317 Defense by person to whom summons not personally delivered

Gonzalez v City of New York, 2009 NY Slip Op 06163 (App. Div., 2nd, 2009)

The defendants proffered a reasonable justification for the failure
to present the affidavit of the defendant Miguel Carvajal in opposition
to the plaintiff's prior motion for leave to enter a default judgment
against Carvajal and in support of their prior cross motion, inter
alia, to vacate Carvajal's default in appearing in the action or
answering the complaint based on the Corporation Counsel's delay in
obtaining an affidavit from Carvajal (see CPLR 2221[e][2], [3]; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 392; Miller v Duffy, 162 AD2d 438, 439-440; Matter of Mangialino v White Haven Mem. Park, 132 AD2d 970, 971).

Service upon Carvajal was made, inter alia, by delivery of the
summons and complaint to a coworker at Carvajal's actual place of
business and by mailing the summons to him at his actual place of
business pursuant to CPLR 308(2) (see Anderson v GHI Auto Serv., Inc., 45 AD3d 512,
513). Although the defendants' cross motion was made pursuant to CPLR
5015(a)(1), under the circumstances of this case, it may also be
treated as a motion made pursuant to CPLR 317 (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 142-143; Hospital for Joint Diseases v Lincoln Gen. Ins. Co., 55 AD3d 543, 544; Mann-Tell Realty Corp. v Cappadora Realty Corp., 184 AD2d 497, 498). Upon renewal, the defendants established that Carvajal did not receive [*2]actual
notice of the summons in time to defend, he did not deliberately
attempt to avoid service, and he has a meritorious defense to the
action (see CPLR 317; Taieb v Hilton Hotels Corp., 60 NY2d 725, 727; Franklin v 172 Aububon Corp., 32 AD3d 454; Brockington v Brookfield Dev. Corp., 308 AD2d 498; Samet v Bedford Flushing Holding Corp.,
299 AD2d 404, 405). Accordingly, upon renewal, the plaintiff's prior
motion for leave to enter a default judgment against Carvajal was
properly denied and the defendants' prior cross motion to vacate
Carvajal's default and to compel the plaintiff to accept the amended
answer was properly granted.

Wells Fargo Bank, NA v Chaplin, 2009 NY Slip Op 06179 (App. Div., 2nd, 2009)

The burden of proving that personal jurisdiction has been acquired over a defendant in an action rests with the plaintiff (see Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343; Bank of Am. Nat. Trust & Sav. Assn. v Herrick, 233 AD2d 351; Frankel v Schilling,
149 AD2d 657, 659). Ordinarily, a process server's affidavit of service
establishes a prima facie case as to the method of service and,
therefore, gives rise to a presumption of proper service (see Household Fin. Realty Corp. of N.Y. v Brown, 13 AD3d 340; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d at 344; Frankel v Schilling, 149 AD2d 657, 659; see also New Is. Invs. v Wynne,
251 AD2d 560). However, where there is a sworn denial that a defendant
was served with process, the affidavit of service is rebutted, and the
plaintiff must establish jurisdiction at a hearing by a preponderance
of the evidence (see Mortgage Access Corp. v Webb, 11 AD3d 592, 593; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d at 344; Kingsland Group v Pose, 296 AD2d 440; Balancio v Santorelli, 267 AD2d 189; New Is. Invs. v Wynne, 251 AD2d 560; Bank of Am. Nat. Trust & Sav. Assn. v Herrick, 233 AD2d at 352).
[*2]

Here, the plaintiff allegedly
effected service upon the appellant pursuant to CPLR 308(2) on April
23, 2007, by delivering the summons and complaint to a person of
suitable age and discretion, who was identified as Marilyn Matheson, at
the appellant's residence in Queens. In support of her motion, in
effect, to vacate her default in appearing or answering the complaint,
the appellant submitted an affidavit from Matheson averring that the
summons and complaint had never been delivered to her, and that she was
in Pawling, New York, in April 2007. Although Matheson's affidavit did
not specify that she was in Pawling on April 23, 2007, when process
allegedly was delivered to her in Queens, the appellant submitted
additional evidence to substantiate her claim that Matheson was in
Pawling that day, including a letter from a physician who treated
Matheson for flu symptoms. The appellant's submissions also indicated
that Matheson's physical appearance varied significantly from the
description set forth in the affidavit of service. Under these
circumstances, the appellant is entitled to a hearing on the issue of
whether service was properly effected pursuant to CPLR 308(2) (see Zion v Peters, 50 AD3d 894; Mortgage Access Corp. v Webb, 11 AD3d at 593; Bankers Trust Co. of Cal. v Tsoukas,
303 AD2d at 344). Thus, we remit the matter to the Supreme Court,
Queens County, for a hearing to determine whether the appellant was
properly served and thereafter for a new determination of the motion to
vacate.

The appeal from so much of the order dated June 5, 2008, as
denied that branch of the appellant's motion which was for leave to
reargue must be dismissed, since no appeal lies from an order denying
reargument. The appeal from so much of the order dated June 5, 2008, as
denied that branch of the appellant's motion which was for leave to
renew must be dismissed as academic in light of our determination on
the appeal from the order dated December 4, 2007.

The bold is mine.

Interpretation of Contracts; SOLD!

U.S. Philips Corp. v EMI Music, Inc., 2009 NY Slip Op 06135 (App. Div., 2nd, 2009)

"[A] written agreement that is complete, clear and unambiguous on its
face must be enforced according to the plain meaning of its terms" (Greenfield v Philles Records, 98 NY2d 562, 569; see Salerno v Odoardi, 41 AD3d 574,
575). " [E]xtrinsic and parol evidence is not admissible to create an
ambiguity in a written agreement which is complete and clear and
unambiguous upon its face'" (W.W.W. Assocs. v Giancontieri, 77 NY2d 157, 163, quoting Intercontinental Planning v Daystrom, Inc., 24
NY2d 372, 379). Contrary to the defendants' contention, the Supreme
Court properly found that the language of the parties' license
agreement was clear and unambiguous as to the payment by the defendants
of certain royalties for compact discs that were "sold," even if the
compact discs were later returned by the defendants' customers. In this
regard, the subject agreement provided that the defendants would be
responsible for paying royalties to the plaintiff for compact [*2]discs
"made, used, sold or otherwise disposed of" by the defendants. The
agreement further provided that a product "shall be considered sold
when invoiced, or if not invoiced, when delivered to a party other than
the manufacturer." Accordingly, the plaintiff made a prima facie
showing of its entitlement to judgment as a matter of law on the issue
of liability with respect to so much of the complaint as sought the
payment of certain royalties for compact discs that were sold but later
returned by the defendants' customers (see Meirowitz v Bayport-Bluepoint Union Free School Dist., 57 AD3d 858, 860). In opposition thereto, the defendants failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324).

The bold is mine.

CPLR R. 3212(f) facts within the exclusive control of the moving party

CPLR R. 3212 Motion for summary judgment

(f) Facts unavailable to opposing party

Desena v City of New York, 2009 NY Slip Op 06160 (App. Div., 2nd, 2009)

Keyspan established its prima facia entitlement to judgment as a
matter of law by submitting evidence that it did not create the alleged
roadway defect that caused the plaintiff's injuries (see Alvarez v Prospect Hosp., 68
NY2d 320, 324). The plaintiff, however, established that facts
essential to resolution of this case exist, but are within the
exclusive control of Keyspan. Pursuant to CPLR 3212(f), a trial court
has the discretion to deny a motion for summary judgment or order a
continuance to allow disclosure if "facts essential to justify
opposition may exist, but cannot then be stated." There must be a
likelihood of discovery leading to such evidence (see Mazzaferro v Barterama Corp., 218
AD2d 643), and the party opposing the motion for summary judgment must
allege the existence of proof in admissible form which presents a
triable issue of fact or an acceptable excuse for the absence of
first-hand knowledge (see Chemical Bank v PIC Motors Corp., 58 NY2d 1023).

In opposition to the motion for summary judgment, the plaintiff submitted the [*2]affirmation
of his attorney alleging that the Keyspan foreman, who was present at
the Keyspan work site on the date work was performed and completed and
who, to date, has not yet been deposed, will provide facts that will
raise a triable issue of fact and are essential to the plaintiff's
ability to defend against this motion for summary judgment. To the
extent that Keyspan's motion for summary judgment is based entirely
upon evidence which refers to work which was planned or permitted to be
performed at the work site, and not upon evidence showing what work was
actually performed, the deposition of the Keyspan foreman, who was
actually present, is necessary to resolve this factual dispute.

The bold is mine.

CPLR R. 5526 Record insufficient — Appeal dismissed

CPLR R. 5526 Content and form of record on appeal

Keita v United Parcel Serv., 2009 NY Slip Op 06165 (App. Div., 2nd, 2009)

In two decisions and orders on motion, dated December 24, 2008, and
March 12, 2009, respectively, this Court directed the plaintiffs to
serve and file a supplemental record containing, inter alia, the
answers to the complaint and "the notice of motion and affidavits
annexed thereto, answering affidavits, if any, and reply affidavits, if
any, submitted in connection with the motion that resulted in the order
being appealed." The plaintiffs have failed to do so.

It is the appellants' obligation to assemble a proper record on appeal (see Salem v Mott, 43 AD3d 397; Cohen v Wallace & Minchenberg, 39 AD3d 689, 689). In this regard, "[t]he record must contain all of the relevant papers that were before the Supreme Court" (Cohen v Wallace & Minchenberg, 39 AD3d 689; see CPLR 5526; Matter of Allstate Ins. Co. v Vargas, 288
AD2d 309, 310). Where, as here, meaningful appellate review of the
Supreme Court's determination is made "virtually impossible" because of
the incomplete nature of the record submitted, dismissal of the appeal
is the appropriate disposition (Salem v Mott, 43 AD3d 397, 397).

The bold is mine,

Best Evidence Rule Objection was Properly Overruled

Madison-68 Corp. v Malpass, 2009 NY Slip Op 06154 (App. Div., 1st, 2009)

Plaintiff's objection, made under the best evidence rule, to the
admission of the lease rider was properly overruled because it had
offered into evidence a copy of the same document. The J.H.O. at times
cut off questioning, but did so in an evenhanded manner to expedite the
trial, never amounting to prejudicial error (see Lewis v Port Auth. of N.Y. & N.J., 8 AD3d 205,
206 [2004]). Nor was the judgment against the weight of the evidence,
since the case essentially turned on the parties' competing oral
testimony. The issue of the prevailing party notwithstanding, it was
error for the J.H.O. to determine that defendants were entitled to an
award of attorneys' fees. In Oxford Towers Co., LLC v Wagner (58 AD3d 422 [2009]), this Court held that an identical lease provision was not covered by Real Property Law § 234.

The bold is mine.

Due Process and Brain Surgery

Matter of Detres v New York City Hous. Auth., 2009 NY Slip Op 06152 (App. Div., 1st, 2009)

An evidentiary hearing before the court to supplement the record should
not have been directed, and instead the matter should have been
remitted to the Housing Authority for further proceedings (see Matter of Ansonia Assoc. v State Div. of Hous. & Community Renewal, 147 AD2d 420, 421 [1989]; Matter of Board of Educ. of Pleasantville Union Free School Dist. v Ambach,
132 AD2d 257, 261 [1987]). Further consideration by the agency is
warranted because petitioner underwent major brain surgery some five
months before the administrative hearing and exhibited some confusion
at the hearing. As a result of the Hearing Officer's failure to
question petitioner, who represented herself pro se, about her medical
issues and their ramifications, petitioner was not afforded a full
opportunity to be heard, particularly with respect to when her [*2]tenancy commenced (see Matter of Hall v Municipal Hous. Auth. for City of Yonkers, 57 AD2d 894, 894-895 [1977], appeal dismissed 42 NY2d 973 [1977], lv denied
42 NY2d 805 [1977] [due process affords public housing tenants the
right of opportunity to be heard]. Pursuant to Supreme Court's
directive, petitioner submitted evidence that she had co-resided in the
apartment with her mother for more than the requisite year and that
respondent implicitly approved of the co-residency (see Matter of McFarlane v New York City Hous. Auth., 9 AD3d 289, 291 [2004]).

The bold is mine.

CPLR § 7503 Arbs

CPLR § 7503 Application to compel or stay arbitration; stay of action; notice of intention to arbitrate

Shah v Monpat Constr., Inc., 2009 NY Slip Op 06132 (App. Div., 2nd, 2009)

Arbitration is favored in New York State as a means of resolving
disputes, and courts should interfere as little as possible with
agreements to arbitrate (see Matter of Smith Barney Shearson v Sacharow, 91 NY2d 39, 49; Matter of Miller, 40 AD3d 861,
861-862). There is a substantial countervailing consideration as well:
"by agreeing to arbitrate a party waives in large part many of his
normal rights under the procedural and substantive law of the State" (Matter of Marlene Indus. Corp. [Carnac Textiles], 45 NY2d 327, 333 334; see Matter of Miller, 40
AD3d at 862). For that reason, "a party will not be compelled to
arbitrate and, thereby, to surrender the right to resort to the courts,
absent evidence which affirmatively establishes that the parties
expressly agreed to arbitrate their disputes'" (Matter of Waldron [Goddess], 61 NY2d 181, 183, quoting Schubtex, Inc. v Allen Snyder, Inc., 49 NY2d 1, 6; see TNS Holdings v MKI Sec. Corp. 92 NY2d 335, 339; Matter of Miller, 40 AD3d at 862). "The agreement must be clear, explicit and unequivocal" (Matter of Waldron [Goddess], 61 NY2d at 183; see God's Battalion of Prayer Pentecostal Church, Inc. v Miele Assoc., LLP, 6 NY3d 371, 374; Matter of Miller, 40
AD3d at 862). Once the court has determined the threshold issues of the
existence of a valid agreement to arbitrate, that the party seeking
arbitration has complied with the agreement, and that the claim sought
to be arbitrated would [*3]not be time-barred were it asserted in state court (see CPLR 7502[b]; Matter of Smith Barney, Harris Upham & Co. v Luckie, 85 NY2d 192, 201-202), the remaining issues are for the arbitrator.

Here, the written contract was clear, explicit, and unequivocal
and established a valid agreement to arbitrate. The agreement expressly
adopted Document A201-1997 by reference, in effect, listed it as one of
the "Contract Documents" in Article 1, enumerated it as one of the
"Contract Documents" in Article 8, and referred to it by document
number throughout. Consequently, the arbitration provisions included in
Document A201-1997 are part of the written contract (see Matter of Level Export Corp. [Wolz, Aiken & Co.],
305 NY 82, 87). Shah's contention that he never received Document
A201-1997 is unavailing, and his ignorance of its provisions must be
attributed to " negligence or inexcusable trustfulness'" (Matter of Level Export Corp. [Wolz, Aiken & Co.], 305 NY 82, 87, quoting Metzger v Aetna Ins. Co., 227 NY 411, 416]).

The plaintiffs did not contend in the Supreme Court, either in
support of their motion to stay arbitration or in opposition to the
defendants' motion to compel arbitration, that Monpat had not complied
with conditions precedent to arbitration. Consequently, that issue is
not properly before us (see Matter of New York Cent. Mut. Fire Ins. Co. v Daley, 273 AD2d 315; Matter of County of Suffolk v Faculty Assn. of Suffolk County Community Coll., 247
AD2d 472). Indeed, had the issue been raised in the Supreme Court,
Monpat may have been able to present evidence that it had in fact
complied with conditions precedent (see Matter of New York Cent. Mut. Fire Ins. Co. v Daley, 273 AD2d 315; cf. Misicki v Caradonna, 12 NY3d 511; Weiner v MKVII-Westchester, 292 AD2d 597, 598).

In general, where there is a broad arbitration clause, any issue
with respect to changes in the substantive provisions of a contract or
its termination are to be resolved by the arbitrator, unless the
modification or termination relates to the arbitration clause itself (see Matter of Cassone, 63 NY2d 756, 759; Matter of All Metro Health Care Servs. Inc. v Edwards, 57 AD3d 892; Matter of Meetze [La Belle], 295 AD2d 991, 992; Matter of Cantor Fitzgerald, L.P. [Ginsberg],
228 AD2d 591). Here, the plaintiffs' contention that the written
contract was abandoned was not directly related to the arbitration
provisions, so the issue of abandonment should be left for the
arbitrator. The issue of the statute of limitations is so intertwined
with the parties' substantive contentions and the contentions regarding
abandonment that the issue of the statute of limitations should be left
to the arbitrator (see Matter of Corbo v Les Chateau Assoc., 127
AD2d 657, 658). As well, issues regarding proper service of the demand
for arbitration should be determined by the arbitrator (see Matter of Rockland County v Primiano, 51 NY2d 1, 8; Cooper v Bruckner, 21 AD3d 758, 759; J. Castronovo, Inc. v Hillside Dev. Corp., 140 AD2d 585).

Finally, the written contract was between Shah and Monpat, and
there is no clear evidence that the plaintiffs ever agreed to arbitrate
any disputes with Patel and RB. Consequently, the Supreme Court should
not have compelled the plaintiffs to arbitrate their claims against
those defendants (see Estate of Castellone v JP Morgan Chase Bank, N.A., 60 AD3d 621, 623).

The bold is mine.

Standing; CPLR R. 3211

CPLR R. 3211 Motion to dismiss

RLI Ins. Co. v Steely, 2009 NY Slip Op 06130 (App. Div., 2nd, 2009)

The defendant William Steely sought insurance coverage for a boating
accident pursuant to, inter alia, a homeowner's policy issued to him by
the defendant New York Central Mutual Fire Insurance Company
(hereinafter NY Mutual), and an umbrella policy issued to him by the
plaintiff, RLI Insurance Company. NY Mutual allegedly denied coverage
on the ground that, inasmuch as Steely owned the boat on the date of
the accident, there was no coverage because of a specific exclusion
under its policy. The plaintiff commenced this action for a judgment
declaring, inter alia, that NY Mutual was obligated to provide coverage
to Steely because he did not, in fact, [*2]own
the boat on the date of the accident, and that any such coverage
provided by the plaintiff's policy was excess to any coverage provided
by NY Mutual's policy.

NY Mutual moved, inter alia, pursuant to CPLR 3211 to dismiss
the complaint for lack of standing insofar as asserted against it. NY
Mutual argued, among other things, that the plaintiff lacked standing
to challenge its disclaimer of coverage to its insured. The Supreme
Court, inter alia, granted that branch of NY Mutual's motion which was
to dismiss the complaint insofar as asserted against it. We reverse the
order insofar as appealed from.

We find that the plaintiff has standing to challenge NY
Mutual's disclaimer of coverage to its insured. "A plaintiff need not
be privy to an insurance contract to commence a declaratory judgment
action to determine the rights and obligations of the respective
parties, so long as the plaintiff stands to benefit from the policy" (Mortillaro v Public Serv. Mut. Ins. Co., 285 AD2d 586, 587). Here, the plaintiff clearly stands to benefit from NY Mutual's policy.

The bold is mine.

Reasonbable Excuse and (Potentially?) Meritorious Defense: CPLR R. 5015

CPLR R. 5015 Relief from judgment or order

Kramer v Oil Servs., Inc., 2009 NY Slip Op 06121 (App. Div., 2nd, 2009)

A defendant seeking to vacate its default in appearing or answering the
complaint must provide a reasonable excuse for the default and
demonstrate the existence of a meritorious defense to the action (see CPLR 5015[a][1]; Lemberger v Congregation Yetev Lev D'Satmar, Inc., 33 AD3d 671, 672; Krieger v Cohan, 18 AD3d 823; Kaplinsky v Mazor,
307 AD2d 916). The only excuse proffered by the appellant for the
default in serving a timely answer was the more than one-year delay
caused by its insurance carrier in providing a defense which, under the
circumstances, was insufficient (see Toland v Young, 60 AD3d 754; Martinez v D'Alessandro Custom Bldrs. & Demolition, Inc., 52 AD3d 786; Canty v Gregory, 37 AD3d 508; Lemberger v Congregation Yetev Lev D'Satmar, Inc., 33 AD3d at 672; Krieger v Cohan, 18 AD3d 823; Hegarty v Ballee, 18 AD3d [*2]706). Accordingly, the Supreme Court providently exercised its discretion in denying the appellant's motion.

Recently I received a comment questioning why some decision require defendant to show a "potentially" meritorious defense and others require them to show meritorious defense. I suggested that "potentially meritorious" might be a middle ground between an "interests of justice" vacatur and and a normal meritorious defense vacatur. I know, that sentence is anything but clear. But I think you get the idea.

So, yeah, I'm still looking into it. I meant to do it over the weekend, but life got in the way. And I'm lazy. Eventually I will get to it, I swear.

The bold is mine.