CPLR R. 2103

Settlement and Cross-motion timing

Zisholtz & Zisholtz, LLP v Mandel, 2018 NY Slip Op 07349 [2d Dept. 2018]

Contrary to the plaintiff’s contention, it failed to submit any evidence that the purported open court settlement agreement of January 28, 2016, constituted a valid and binding settlement agreement pursuant to CPLR 2104 (see Diarassouba v Urban, 71 AD3d 51, 54; Maldonado v Novartis Pharms. Corp., 40 AD3d 940). Rather, the plaintiff submitted only the January 29 stipulation, which was not executed by the plaintiff. Therefore, the January 29 stipulation did not constitute an enforceable settlement agreement binding upon the plaintiff and the appellant (see CPLR 2104). In the absence of an enforceable settlement agreement, the Supreme Court should have denied the plaintiff’s motion.

We also disagree with the Supreme Court’s determination denying the cross motion as untimely. The plaintiff served its motion by regular mail on March 17, 2016, with a return date of April 6, 2016. In order to make effective its demand for seven days’ notice of answering papers or a cross motion (see CPLR 2214[b]; CPLR 2215), the plaintiff was required to have mailed its motion papers at least 21 days prior to the return date (see CPLR 2103[b][2]; CPLR 2214[b]; Matter of Hartford Fire Ins. Co. v Fell, 53 AD3d 760, 761-762). The plaintiff mailed its motion papers only 20 days before the return date. Thus, the cross motion, which was served six days before the return date, was timely (see CPLR 2215).

Demetriou v Wolfer, 2018 NY Slip Op 07288 [2d Dept. 2018]

In July 2012, the plaintiff commenced this action to recover damages for dental malpractice. On Friday, October 30, 2015, the plaintiff, by text message, directed her former attorney to discontinue the action. On that date, the former attorney and defense counsel executed a stipulation of discontinuance (see CPLR 3217[a][2]). On Saturday, October 31, 2015, the plaintiff, by text message, directed her former attorney to, among other things, “not dismiss my case under any circumstances; please retract . . . instructions to discontinue.” Within 30 minutes of receiving that message, the plaintiff’s former counsel advised the plaintiff that the case had already been discontinued. The stipulation of discontinuance was then filed on Monday, November 2, 2015. The plaintiff moved, inter alia, to vacate the stipulation of discontinuance. The Supreme Court denied the motion, and the plaintiff appeals.

We agree with the Supreme Court’s determination to deny the plaintiff’s motion, inter alia, to vacate the stipulation of discontinuance. CPLR 2104 provides that, “[a]n agreement between parties or their attorneys relating to any matter in an action, other than one between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered.” Here, there is no dispute that on October 30, 2015, the plaintiff’s former counsel had actual authority from his client to enter into the stipulation discontinuing the action on her behalf (see Hallock v State of New York, 64 NY2d 224, 230; Weil, Gotshal & Manges LLP v Fashion Boutique of Short Hills, 56 AD3d 334, 335). Contrary to the plaintiff’s contention, the stipulation of discontinuance clearly evidenced the plaintiff’s intent to discontinue the action as of October 30, 2015, notwithstanding that she changed her mind prior to the filing of the stipulation on November 2, 2015 (see Lim v Choices, Inc., 60 AD3d 739, 740). Pursuant to CPLR 2104, the stipulation must be regarded as a valid, binding contract (see Pile v Grant, 41 AD3d 810), even though it did not effect a discontinuance until it was filed with the clerk of the court on November 2, 2015 (CPLR 3217[a][2]). In seeking to vacate the stipulation, the plaintiff failed to meet her burden to establish good cause sufficient to invalidate a contract, such as that the stipulation was the result of duress, fraud, mistake, or overreaching, or that the terms of the stipulation were unconscionable (see Chae Shin Oh v Jeannot, 160 AD3d 701; Pieter v Polin, 148 AD3d 1191).

The bold is mine.

CPLR 2103(b)(2) CPLR 2103(b)(6), no sua sponte dismissal

Moran v BAC Field Servs. Corp., 2018 NY Slip Op 05586 [2d Dept 2018]

Contrary to the Supreme Court's determination, CPLR 2103(b)(2) does not apply to render BAC's motion timely since BAC did not attempt service of its motion by using "the post office or official depository under the exclusive care and custody of the United States Postal Service within the state" (CPLR 2103[f][1]). Rather, BAC utilized Federal Express. CPLR 2103(b)(6) provides that "[s]ervice by overnight delivery service shall be complete upon deposit of the paper . . . into the custody of the overnight delivery service for overnight delivery" (emphasis added). The record demonstrates that BAC failed to use Federal Express's overnight delivery service, and instead deposited its papers with Federal Express on Friday for weekday delivery on Monday. Accordingly, the court should have denied BAC's motion as untimely.

We agree with the Supreme Court's denial, as untimely, of the plaintiff's cross motion for leave to enter a default judgment against BAC, since the plaintiff failed to serve his cross motion within the time period required by CPLR 2215(b).

However, the Supreme Court should not have, sua sponte, directed the dismissal of the complaint insofar as asserted against Omega, and should have granted the plaintiff's separate motion for leave to enter a default judgment against Omega. " On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting party's default in answering or appearing'" (Dupps v Betancourt, 99 AD3d 855, quoting Atlantic Cas. Ins. Co. v RJNJ Servs., Inc., 89 AD3d 649, 651; see CPLR 3215[f]). Here, in support of his motion, the plaintiff met all of these requirements as to Omega. Further, Omega never appeared in the action and failed to move to vacate its default (see BAC Home Loans Servicing, LP v Reardon, 132 AD3d 790).

The Supreme Court also should not have, sua sponte, directed the dismissal of the complaint insofar as asserted against Boehm. There was no motion before the court seeking such relief, and the plaintiff was not on notice that such relief could be granted by the court (see Abinanti v Pascale, 41 AD3d 395).

The bold is mine

2103

CPLR R. 2103 Service of papers

Simon v Usher, 2011 NY Slip Op 07305 (2011)

The question presented for our review is whether the five-day extension under CPLR 2103(b)(2) applies to the 15-day time period prescribed by CPLR 511(b) to move for change of venue when a defendant serves its demand for change of venue by mail. We hold that it does.

On July 17, 2009, plaintiffs Allen and Barbara Simon commenced this medical malpractice action against defendants in Supreme Court, Bronx County. Defendants Sol M. Usher, Sol M. Usher, M.D., Maxwell M. Chait, White Plains Hospital Center and Hartsdale Medical Group, P.C., (collectively, the Usher defendants) served their verified answers and demands to change venue to Westchester County on August 20, 2009. Twenty days later, on September 9th, the Usher defendants moved to change venue to Westchester County on the grounds that, except for Usher and Usher, M.D., P.C., all of the defendants and the plaintiffs reside in Westchester County; Usher's and Usher, M.D., P.C.'s primary offices are in Westchester County; and plaintiff Allen Simon received the medical care at issue in Westchester County. The remaining defendants Sheldon Alter, Mid-Westchester Medical Associates, LLP, Westchester Medical Group, P.C. and Marianne Monahan served their answer on September 3rd and filed an affirmation in support of the motion to change venue on September 15th.

Supreme Court granted the motion to change venue to Westchester because "none of the parties to this action reside in Bronx County." The Appellate Division unanimously reversed and denied the motion. The court, among other things, rejected the Usher defendants' motion for a change of venue as untimely because it was made 20 days after service of the demand. It concluded that CPLR 2103(b)(2)'s five-day extension for time periods measured from service by mail did not apply to CPLR 511. The Appellate Division granted the Usher defendants leave to appeal to this Court and certified the following question for review: "Was the order of this court, which reversed the order of the Supreme Court, properly made?" We answer the certified question in the negative and now reverse.

When construing a statute, we must begin with the language of the statute and "give effect to its plain meaning" (Kramer v Phoenix Life Ins. Co., 15 NY3d 539, 552 [2010]). Pursuant to CPLR 511(a), a defendant shall serve with the answer, or prior to service of the answer, a demand "for change of place of trial on the ground that the county designated for that purpose is not a proper county." Subsection (b) permits defendant to "move to change the place of trial within fifteen days after service of the demand, unless within five days after such service plaintiff serves a written consent to change the place of trial to that specified by the defendant." CPLR 2103 provides "where a period of time prescribed by law is measured from the service of a paper and service is by mail, five days shall be added to the prescribed period." "The extension provided in CPLR 2103(b)(2) constitutes legislative recognition of and compensation for delays inherent in mail delivery" (Sultana v Nassau Hosp., 188 AD2d 627 [2d Dept 1992]).

Here, defendants who served their motion papers by mail 20 days after they served their demand to change venue are entitled to a five-day extension of the 15-day period prescribed in CPLR 511(2). Plaintiffs, citing Sultana, contend that defendants cannot rely upon section 2103(b)(2) for the five-day extension because the motion did not constitute response papers. Section 2103(b) contains no language restricting its application to instances where a party is responding to papers served by an adversary. Moreover, defendants are permitted to move to change venue only in the event that plaintiffs do not consent in writing within five days after service of the demand. Although the motion papers are not directly responding to papers served by plaintiffs, defendants are effectively responding to plaintiffs' lack of consent to the change of venue. Simply put, defendants' motion papers are not initiatory and, because the demand was served by mail, defendants were entitled to the benefit of section 2103(b)(2)'s five-day extension.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the case remitted to that court for consideration of issues raised but not determined on the appeal to that court, and the certified question answered in the negative.

PIGOTT, J. (dissenting):

While I fear adding further confusion to what, up until now, seemed to be a fairly simple statute, I respectfully dissent from the judicial creation of what I will label an "anticipatory five-day rule" amending CPLR § 2103 (b) (2).

On July 17, 2009, plaintiffs commenced this medical malpractice action against multiple defendants by filing their summons and complaint in Supreme Court, Bronx County, basing their choice of venue on the fact that defendant Sol M. Usher had a place of business in the Bronx. Defendants answered by mail on August 20, 2009 and, pursuant to CPLR § 511 (b), simultaneously served a demand for a change of venue from Bronx County to Westchester County. Plaintiffs did not respond within five days after the date of service of the demand, i.e. by August 25, 2009. This permitted defendants, if they so chose, to move to change the place of trial by filing a motion in either Bronx or Westchester County on or before September 4, 2009. However, defendants' motion was served by mail on September 9, 2009.

Plaintiffs objected, and I think properly so, that the motion was untimely, under CPLR 511 (b), which provides that a defendant that has served a written demand for a change of venue "may move to change the place of trial within fifteen days after service of the demand, unless within five days after such service plaintiff serves a written consent" (emphasis added). Defendants enlisted CPLR 2103 (b) (2), to argue that their motion was timely because it was served within twenty days of service of their demand, despite the fact that CPLR § 511 specifies fifteen days. Supreme Court, Bronx County, granted defendants' motion to change the venue, but the Appellate Division reversed, and denied the motion, holding that defendants "were not entitled to the five-day extension in CPLR 2103 (b) (2) for time periods measured from service by mail" (73 AD3d 415 [1st Dept 2010]).

Under CPLR 2103 (b) (2), the statute being mangled here, "where a period of time prescribed by law is measured from the service of a paper and service is by mail, five days shall be added to the prescribed period." The legislative history of the statute makes it abundantly clear that its purpose is to give a party, on whom a paper has been served by mail, additional time to respond, because of the delays inherent in mailing. The five-day extension was created in the early 1980s (L 1982, ch 20, § 1, effective January 1, 1983); it had been three days before. At that time, the Advisory Committee on Civil Practice clearly described the extension as applying to a party's "responding time" or "responding period" (1982 Report of the Advisory Committee on Civil Practice to the Chief Administrator of the Courts of the State of New York, 1982 McKinney's Session Laws of NY, at 2651). The Committee wrote that "[t]he traditional three days by which a responding period is extended when the paper to be responded to is served by mail has proved too short in recent years, as the mails have been increasingly delayed" (id. at 2651-2652 [emphasis added]). The legislative intent could not be more obvious. The purpose of CPLR 2103 (b) (2) was to compensate for mail delays, and allow an adverse party more time to assemble responsive papers.

The Appellate Division has understood this, writing that "[t]he extension provided in CPLR 2103 (b) (2) constitutes legislative recognition of and compensation for delays inherent in mail delivery" (Sultana v Nassau Hosp., 188 AD2d 647 [2d Dept 1992], quoting Corradetti v Dales Used Cars, 102 AD2d 272, 273 [3d Dept 1984]) and "does not benefit the party making the service by mail" (Thompson v Cuadrado, 277 AD2d 151, 152 [1st Dept 2000]; see also Harvey v New York State Dep't of Envtl. Conservation, 235 AD2d 625 [3d Dept 1997]). Consistently, Professor Siegel, recognizing the intent of CPLR 2103, has noted that the statute "provides that whenever a period of time is measured from the service of a paper and the paper is served by mail, the party required to take the responsive step gets 5 additional days. This recognizes that the service was deemed complete upon posting and it compensates for the delay in mail delivery. . . . The 5 days are added to the stated period when any mail-served paper requires a responsive step within a stated period" (Siegel, NY Prac § 202, at 346 [5th ed] [emphases added]).

It is noteworthy that the Legislature, in the context of measuring time from the service of a judgment or order, has taken the trouble to add a provision that clarifies that "[w]here service of the judgment or order to be appealed from and written notice of its entry is made by mail . . . [under CPLR 2103], the additional days provided by such paragraphs shall apply to this action, regardless of which party serves the judgment or order with notice of entry" (CPLR 5513 [d]). This 1999 amendment to CPLR 5513 gives an additional five days to take an appeal when a notice of entry is served by mail, regardless of which party serves the notice of entry. The Legislature has not acted to alter statutes other than CPLR 5513, so as to make corresponding clarifications in areas other than appeals.

Here, defendants benefitted from the rule that papers are deemed served upon mailing – in this case on August 20. Plaintiffs, who would have received the papers some days after that, would have known that, while the statute requires a response within five days, i.e. by August 25, they could add five days and serve their response, if they chose to make one, on or before August 30. The five-day timetable is indisputably subject to extension under CPLR 2103 (b) (2), because it is a responsive deadline (Podolsky by Podolsky v Nevele Winter Sports, 233 AD2d 605, 605-606 [3d Dept 1996]; Hughes v Nigro, 108 AD2d 722, 723 [2d Dept 1985]). Defendants, on the other hand, were "not directly responding" to any papers, as the majority concedes (majority op at 4). Having no doubt marked plaintiffs' August 30 deadline on their calendar, defendants had until September 4, to serve, by mail if they chose, their motion for change of place of trial. That they did not is, in my view, fatal to their motion.

Defendants argue that plaintiffs' reading of CPLR 2103 (b) (2) creates practical difficulties for litigants. Given that plaintiffs have 10 days to decide about consent, the 15-day deadline for the motion means that defendants may have only 5 days between a service by mail of consent to change of venue and the motion deadline. If the mailing delay is 3 days, the time for preparing and filing the motion would end up being 2 days. Giving both parties the benefits of the extended period might be a good idea, practically. But one need only refer to CPLR § 2214 (b), which allows reply papers to be served by mail one day before the return date of a motion, to know that the Rules have not always been drafted with practicality in mind. In such a situation, an appellate court may signal the practical difficulties to the Legislature, so that it may consider amending the statute. But it is up to the Legislature to enact such a law.

In light of the legislative history and standard interpretations of CPLR 2103 (b) (2) in case law and commentary, I think it clear that 2103 (b) benefits only the party responding to the service, and I would therefore affirm the order of the Appellate Division.

properly considered the cross-motion: 2103 2001

CPLR R. 2103 Service of papers

CPLR § 2001 Mistakes, omissions, defects, and irregularities

Jones v LeFrance Leasing Ltd. Partnership, 2011 NY Slip Op 01441 (App. Div., 2nd 2011)

Contrary to Alliance's contention, the Supreme Court properly considered the plaintiffs' cross motion. Although the plaintiffs served their cross motion via media mail, as opposed to first class mail (see CPLR 2103), since Alliance opposed the cross motion on the merits, the defect in service was a mere irregularity that did not result in substantial prejudice to Alliance (see CPLR 2001; Piquette v City of New York, 4 AD3d 402, 403; see also Henry v Gutenplan, 197 AD2d 608).

Serve it right (OSC)

CPLR
§ 308 Personal service upon a natural person

CPLR
R. 2103 Service of papers

City of New York v Miller, 2010 NY Slip Op 03059 (App. Div., 2nd, 2010)

The Supreme Court properly denied, without a hearing, the defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction. The affidavits of the process servers constituted prima facie evidence of proper service pursuant to CPLR 308(4) (see Scarano v Scarano, 63 AD3d 716, 716; Mortgage Elec. Registration Sys., Inc. v Schotter, 50 AD3d 983, 983; 425 E. 26th St. Owners Corp. v Beaton, 50 AD3d 845, 846; Simonds v Grobman, 277 AD2d 369, 370). Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by a process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits (see Scarano v Scarano, 63 AD3d at 716; Simonds v Grobman, 277 AD2d at 370). Here, the defendants' bare denial of service was insufficient to rebut the prima facie proof of proper service pursuant to CPLR 308(4) created by the process servers' affidavits and to necessitate a traverse hearing (see Scarano v Scarano, 63 AD3d at 716; Mortgage Elec. Registration Sys., Inc. v Schotter, 50 AD3d at 983; 425 E. 26th St. Owners Corp. v Beaton, 50 AD3d at 846; Simonds v Grobman, 277 AD2d at 370).

The Supreme Court also properly denied the defendants' motion, inter alia, to vacate a temporary restraining order and preliminary injunction based on lack of proper service of the order to show cause. "The method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with" (Matter of El Greco Socy. of Visual Arts, Inc. v Diamantidis, 47 AD3d 929, 929; see Matter of Del Villar v Vekiarelis, 59 AD3d 642, 643; Matter [*2]of Master v Pohanka, 43 AD3d 478, 480, affd 10 NY3d 620; Matter of Hennessey v DiCarlo, 21 AD3d 505, 505). Here, the express terms of the order to show cause required the plaintiffs to serve the order to show cause and other papers on the defendants as well as their attorneys. However, while it is undisputed that attorney Vincent M. Gerardi represented the defendants in a related but separate and independent action, and that the plaintiffs were aware of that action, it is also undisputed that, in the instant action, as of the time the plaintiffs were required to serve the order to show cause, no attorney had appeared on behalf of the defendants (see generally CPLR 320[a], 321[a]). CPLR 2103(c) expressly provides that, if a party has not appeared by an attorney, service shall be upon the party. Thus, notwithstanding the language directing service in the order to show cause, the plaintiffs were not required to serve Gerardi with the order to show cause merely because he represented the defendants in a separate and independent, if not entirely unrelated, action, where neither he nor any other attorney had appeared on behalf of the defendants in this action (see Long v Long, 196 Misc 982, 984).

I'm adding another case (5/31/10) because it doesn't deserve it's own post, but is nonetheless relevant to the blog.

Lobo v Soto, 2010 NY Slip Op 04553 (App. Div., 2nd, 2010)

"The method of service provided for in an order to show cause is
jurisdictional in nature and must be strictly complied with'" (City
of New York v Miller, 72 AD3d 726, *1, quoting Matter of El Greco
Socy. of Visual Arts, Inc. v Diamantidis, 47 AD3d 929, 929; see
Matter of Del Villar v Vekiarelis, 59 AD3d 642, 643; Matter of
Master v Pohanka, 43 AD3d 478, 480, affd 10 NY3d 620; Matter
of Hennessey v DiCarlo, 21 AD3d 505, 505). Here, the Supreme Court
correctly determined that the plaintiffs failed to strictly comply with
the method of service set forth in the order to show cause in connection
with service of the motion on the referee.

REVERSED: CPLR R. 5513; CPLR R. 5515; CPLR R. 2103; Failure to put the papers in a mailbox in NY = no jurisdiction

The Appellate Division, First Department was reversed by the Court of Appeals. Norman Olch posted about it on his blog, Full Court Pass. Here is the decision. M Entertainment, Inc. v Leydier, 2009 NY Slip Op 07671 (Ct. App. 2009)

The order of the Appellate Division should be reversed, with costs,
and the matter remitted to that court for further proceedings in
accordance with this memorandum.

The Appellate Division erred in concluding that plaintiffs' non-compliance with [*2]the requirement that mail service be accomplished by mailing "within the state" (see
CPLR 2103 [b] [2], [f] [1]) constituted a "fatal jurisdictional defect"
requiring the dismissal of plaintiffs' appeal against Lawrence Leydier.
CPLR 5520(a) provides:

"If an appellant either serves or files a timely
notice of appeal or notice of motion for permission to appeal, but
neglects through mistake or excusable neglect to do another required
act within the time limited, the court from or to which the appeal is
taken or the court of original instance may grant an extension of time
for curing the omission."

Plaintiffs here timely filed
their notice of appeal with the New York County Clerk's office, thus
authorizing the Appellate Division to determine whether to exercise its
discretion pursuant to CPLR 5520(a). By contrast, the movants in Cipriani v Green (lv dismissed 96 NY2d 821 [2001], rearg denied 97 NY2d 639) and National Org. for Women v Metropolitan Life Ins. Co. (lv dismissed 70 NY2d 939 [1988], rearg denied
71 NY2d 890) not only failed to timely serve their notices of motion
for leave to appeal, but they also failed to timely file those papers
with this Court. Thus, in those cases, the Court could not invoke its
discretionary authority under CPLR 5520(a).

CPLR R. 5513 Time to take appeal, cross-appeal or move for permission to appeal

CPLR R. 5515 Taking an appeal; notice of appeal

CPLR R. 2103 Service of papers

M Entertainment, Inc. v Leydier, 2009 NY Slip Op 04169 (App. Div., 1st, 2009)

An appeal as of right must be taken within 30 days after service by a
party upon the appellant of a copy of the judgment or order appealed
from, with notice of entry (CPLR 5513[a]). An appellant takes such an
appeal by serving upon adverse parties a notice of appeal, and filing
same with the clerk of the court in which the judgment or order has
been entered (CPLR 5515[1]). Where applicable, CPLR 2103(b)(2) provides
for service of papers upon an attorney by mailing to the address
designated for that purpose. "Mailing," under the statute, requires the
deposit of those papers "in a post office or official depository under
the exclusive care and custody of the United States Postal Service within the state
(CPLR 2103[f][1], [emphasis added]). It is undisputed that plaintiffs,
who opted for service by mail, did not place the notice of appeal to be
served upon Leydier in a post office or depository within this State.
Accordingly, the notice of appeal is of no effect with respect to
Leydier because service was not completed within the meaning of CPLR
2103 (see Cipriani v Green, 96 NY2d 821 [2001]; National Org. for Women v Metropolitan Life Ins. Co., 70
NY2d 939 [1988]). We note that the Third Department has excused late
service of a notice of appeal upon a showing of mistake or excusable
neglect (Peck v Ernst Bros., 81 AD2d 940 [1981]), but the Court of Appeals has [*2]categorically held that the power of an appellate court to review a judgment is subject to an appeal being timely taken" (Hecht v City of New York, 60
NY2d 57, 61 [1983]). We thus find plaintiffs' improper service of their
notice of appeal upon Leydier to be a fatal jurisdictional defect.

The dissent makes an excellent point.

Leydier's sole objection to the service of the notice of appeal is that
it was deposited in the wrong mailbox, i.e., one located in the State
of New Jersey rather than New York. While, historically, the point of
mailing has been a requirement for the completion of service of papers
upon an attorney, it has not been accorded the universal jurisdictional
significance Leydier and the majority ascribe to it.

I'm putting the entire dissent in after the break. It would take too much space otherwise.

The bold is mine

Continue reading “REVERSED: CPLR R. 5513; CPLR R. 5515; CPLR R. 2103; Failure to put the papers in a mailbox in NY = no jurisdiction”

CPLR R. 5015; CPLR R. 2103

CPLR R. 5015 Relief from judgment or order

CPLR R. 2103 Service of papers

Zaidi v New York Bldg. Contrs., Ltd., 2009 NY Slip Op 02989 (App. Div., 2nd, 2009)

To vacate their default in appearing at the trial and inquest, the defendants were [*2]required to demonstrate both a reasonable excuse for the default and a meritorious defense to the action (see CPLR 5015[a][1]; Vasquez v New York City Hous. Auth., 51 AD3d 781, 782; Conserve Elec., Inc. v Tulger Contr. Corp., 36 AD3d 747; Zeltser v Sacerdote, 24 AD3d 541).
Although determining what constitutes a reasonable excuse generally
lies within the sound discretion of the Supreme Court, reversal is
warranted if that discretion is improvidently exercised (see McHenry v Miguel, 54 AD3d 912, 913; Ahmad v Aniolowiski, 28 AD3d 692, 693; Matter of Zrake v New York City Dept. of Education, 17 AD3d 603).

The Supreme Court improvidently exercised its discretion in
denying that branch of the defendants' motion which was to vacate their
default in appearing at the trial on January 25, 2008, and at the
inquest on the issue of damages held on the same date. The defendants
presented a reasonable excuse for their default based upon their
principal's inability, due to the terminal illness and death of his
wife, to retain new trial counsel after former counsel was relieved (see Du Jour v DeJean, 247 AD2d 370, 371; Matter of McCaffrey v McCaffrey, 210 AD2d 409; State Div. of Human Rights v North Broadway Holding Corp., 38 AD2d 856). Moreover, the defendants' submissions were sufficient to demonstrate the existence of meritorious defenses (see Rocovich v Consolidated Edison Co., 78 NY2d 509; Dooley v Peerless Importers, Inc., 42 AD3d 199; Magnuson v Syosset Community Hosp., 283 AD2d 404).

Furthermore, the Supreme Court erred in denying that branch of
the defendants' motion which was to vacate the prior order dated
January 23, 2008, granting, upon reargument, the third-party
defendant's unopposed motion for summary judgment dismissing the fourth
cause of action in the third-party complaint. Absence of proper service
of a motion is a sufficient and complete excuse for a default on a
motion and deprives the court of jurisdiction to entertain the motion (see Daulat v Helms Bros., Inc., 32 AD3d 410, 411; Bianco v LiGreci, 298 AD2d 482; Welch v State of New York,
261 AD2d 537, 538). The defendants and the third-party defendant
submitted conflicting evidence with respect to the issue of whether the
third-party defendant's motion for leave to reargue was properly served
upon the defendants (see CPLR 2103[b][2], [c], [f][1]; Welch v State of New York, 261 AD2d at 538). Accordingly, a hearing and a new determination are necessary (see Daulat v Helms Bros., Inc., 32 AD3d at 411; LPN Consulting Corp. v Hamm, 202 AD2d 479; Sport-O-Rama Health & Fitness Ctr. v Centennial Leasing Corp., 100 AD2d 584, 585).

The bold is mine.