CPLR R. 5015 – Page 6

CPLR R. 2215 and R. 5015

CPLR R. 2215 Relief Demanded by other than moving party

At least three days prior to the time at which the motion is noticed to be heard, or seven days prior to such time if demand is properly made pursuant to subdivision (b) of rule 2214, a party may serve upon the moving party a notice of cross-motion demanding relief, with or without supporting papers; provided, however, that:

(a) if such notice and any supporting papers are served by mailing, as provided in paragraph two of subdivision (b) of rule 2103, they shall be served three days earlier than as prescribed in this rule;

and
(b) if served by overnight delivery, as provided in paragraph six of subdivision (b) of rule 2103, they shall be served one day earlier than as prescribed in this rule. Relief in the alternative or of several different types may be demanded; relief need not be responsive to that demanded by the moving party.

May v Hartsdale Manor Owners Corp., 2010 NY Slip Op 03882 (App. Div., 2nd, 2010)

To successfully oppose a motion for leave to enter a default judgment
based on the failure to timely serve an answer, a defendant must
demonstrate a reasonable excuse for its delay and the existence of a
meritorious defense (see Kouzios v Deny, 57 AD3d 949; Giovanelli
v Rivera, 23 AD3d 616; Mjahdi v Maguire, 21 AD3d 1067, 1068;
Thompson v Steuben Realty Corp., 18 AD3d 864, 865; Dinstber v
Fludd, 2 AD3d 670, 671). Here, the defendant CDT Real Estate
Management Corp. (hereinafter CDT) attempted to place the blame for its
default in answering upon its insurance company. However, CDT already
was in default by the time it finally forwarded the summons and
complaint to its insurance broker, and CDT failed to offer any
explanation for this delay. Accordingly, it was an improvident exercise
of discretion to excuse the default of CDT, and to extend its time to
serve an answer in the absence of a cross motion for such relief (see
CPLR 2215; Zino v Joab Taxi, Inc., 20 AD3d 521, 522; Hosten
v Oladapo, 44 AD3d 1006).

The sad state of CPLR § 2309 and other things.

CPLR § 2309 is a disaster. The courts are wildly inconsistent in how they treat it. Some prefer the substance over form approach and others do the opposite. Not too long ago, the Appellate Term, First Department allowed a party to add a certificate of conformity at the appellate level. See, Eastern
Star Acupuncture, P.C. v Clarendon Natl. Ins. Co., 2010 NY Slip
Op 50043(U) (App. Term, 1st, 2010). A few days ago, the Appellate Division, First Department wasn't as understanding. (h/t JT). In Green v Fairway Operating Corp., 2010 NY Slip Op 03481 (App. Div., 1st, 2010) the defendant's motion for summary judgment was granted on default. Plaintiff moved to vacate and attached an affidavit from a non-party witness which was sworn in the DR. The plaintiff's motion was denied and the Appellate Division affirmed. I think I said this once before, but it remains true, it's an exceptionally silly reason to lose a motion. JT compares it to russian roulette, which is pretty apt.

The last time I wrote about 2309, I said that it was a dead objection, or something like that. It appears that, in the first department at least, it is alive and well. The objection, however, must be made in the papers, otherwise it's waived. You'll find that most people don't know enough to object.

I'm sure you're thinking, "well, what's the rule in the First Department after Green?" I have no idea. I'd be interested to see what the Appellate Term does with Green. Will it distinguish it or make 2309 a hard rule?

Other issues on my mind:

Why is there a split between the Second and First Department as to what is required to show a "reasonable excuse" when attempting to vacate a default?

Why do the courts allow a defendant to move to dismiss under CPLR R. 3211(a)(7) when the defendant is not claiming that the plaintiff failed to state a cause of action? When affidavits and other proofs are attached, the courts change their inquiry from whether plaintiff has stated a cause of action to whether plaintiff has a cause of action (which is different from whether a plaintiff will ultimate be successful with that cause of action). This, mind you, is different than a court converting it to a motion for summary judgment. It just doesn't make any damn sense to me.

Fun with 5015

CPLR R. 5015 Relief from judgment or order

HSBC Bank USA Natl. Assn. v Nuteh 72 Realty Corp., 2010 NY Slip Op 01617 (App. Div., 2nd, 2010)

"A defendant 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 meritorious defense to the motion and the action" (Newell v Hirsch, 65 AD3d 1108, 1109; see Diamond Truck Leasing Corp. v Cross Country Ins. Brokerage, Inc., 62 AD3d 745; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389; Matter of Gambardella v Ortov Light., 278 AD2d 494, 495; Neuman v Greenblatt, 260 AD2d 616, 617). Here, in opposition to the plaintiff's motion for leave to enter a default judgment against the defendants Nuteh 72 Realty Corp. and Nathan Friedman (hereinafter the defendants), and in support of their cross motion, inter alia, to vacate their default in opposing the plaintiff's motion to strike their answer pursuant to CPLR 3126, the defendants succeeded in demonstrating a reasonable excuse for their default (see Evolution Impressions, Inc. v Lewandowski, 59 AD3d 1039, 1040).

However, the defendants failed to demonstrate, through evidence in admissible form, the existence of a meritorious defense, specifically, under the circumstances here, whether they were good faith purchasers of the subject real property for valuable consideration. Friedman's affirmation states only that "NUTEH is a good faith' purchaser for value of the Premises." This conclusory, [*2]self-serving, and bare legal conclusion was insufficient to establish the existence of a meritorious defense (see Diamond Truck Leasing Corp. v Cross Country Ins. Brokerage, Inc., 62 AD3d at 746; Matter of Atkin v Atkin, 55 AD3d 905; cf. Atwater v Mace, 39 AD3d 573, 575). Additionally, in the absence of any foundation, the defendants' submission of a one-page printout of a New York City Department of Finance document entitled "A[utomated] C[ity] R[egister] I[nformation] S[ystem] Search Results By Parcel Identifier" did not constitute evidence in admissible form sufficient to establish the existence of a meritorious defense (see generally Knupfer v Hertz Corp., 35 AD3d 1237, 1238; Triangle Transp., Inc. v Markel Ins. Co., 18 AD3d 229; Matter of Haber v Haber, 306 AD2d 282, 283; Merrill/New York Co. v Celerity Sys., 300 AD2d 206, 207). Accordingly, in the absence of any admissible evidence sufficient to demonstrate the existence of a meritorious defense, the Supreme Court should have granted the plaintiff's motion for leave to enter a default judgment, and denied the defendants' cross motion, inter alia, to vacate their default in opposing the plaintiff's motion to strike their answer.

Gross v Kail, 2010 NY Slip Op 01616 (App. Div., 2nd, 2010)

The Supreme Court erred in denying the plaintiffs' motion for leave to enter judgment against the defendants upon their default in appearing or answering and, in effect, granting the defendants' application, inter alia, to deem the proposed answer to have been served. In support of their motion, the plaintiffs submitted their process server's affidavits of service of the summonses and the complaints, a factually-detailed complaint verified by the plaintiff Gerald P. Gross, and an affirmation from attorney Mitchell J. Rich regarding the defendants' default in appearing and answering (see CPLR 3215[f]).

In opposition to the plaintiffs' motion and in support of their application, inter alia, to deem the proposed answer to have been served, the defendants were required to demonstrate a reasonable excuse for the default and the existence of a meritorious defense (see CPLR 5015[a][1]; Miller v Ateres Shlomo, LLC, 49 AD3d 612, 613; Lipp v Port Auth. of N.Y. & N.J., 34 AD3d 649; [*2]Juseinoski v Board of Educ. of City of N.Y., 15 AD3d 353, 356; Curran v Graf, 13 AD3d 409; Ennis v Lema, 305 AD2d 632, 633). The defendants failed to provide any excuse for their default and failed to demonstrate that they had a meritorious defense to the action. The defendants submitted a proposed answer verified only by their attorney, who had no personal knowledge of the facts (see Baldwin v Mateogarcia, 57 AD3d 594, 595; Bekker v Fleischman, 35 AD3d 334, 335; Pampalone v Giant Bldg. Maintenance, Inc., 17 AD3d 556, 557; Juseinoski v Board of Educ. of City of N.Y., 15 AD3d at 356). Accordingly, the plaintiffs' motion should have been granted and the defendants' application should have been denied.

393 Lefferts Partners, LLC v New York Ave. at Lefferts, LLC, 68 AD3d 976 (App. Div., 2nd, 2009)

A defendant seeking to vacate a default in answering must demonstrate a reasonable excuse for the default and the existence of a meritorious defense (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Gray v B. R. Trucking Co., 59 NY2d 649, 650 [1983]; Harris v City of New York, 30 AD3d 461, 463-464 [2006]; Orangetown Policemen&
#39;s Benevolent Assn. v Town of Orangetown, 18 AD3d 841 [2005]). The appellant submitted an affidavit of service that stated that it was served on August 10, 2007, pursuant to Limited Liability Company Law § 303, by service upon the Secretary of State. The appellant also submitted a certificate of service and return receipt showing that the Secretary of State delivered the summons and complaint to the appellant's designated address by certified mail, return receipt requested, but the return receipt was not dated and was signed by a person who was not employed by the appellant. Joseph Artusa, one of the appellant's managing members, stated in an affidavit that he was out of the office "on many days" in August and September of 2007 and did not see the summons and complaint on his desk until late September, when the time to answer it had expired. This statement does not provide a reasonable excuse for the appellant's default. Moreover, the Supreme Court providently exercised its discretion in determining that the appellant was not entitled to relief pursuant to CPLR 317, since it failed to demonstrate that it did not receive actual notice of the summons and complaint in time to defend the action (see CPLR 317; Taieb v Hilton Hotels Corp., 60 NY2d 725 [1983]; Franklin v 172 Aububon Corp., 32 AD3d 454 [2006]; Brockington v Brookfield Dev. Corp., 308 AD2d 498 [2003]). In addition, the appellant failed to demonstrate a meritorious defense to the action.

The bold is mine

CPLR R. 5015 Don’t Try This at Home

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

Campbell-Jarvis v Alves, 2009 NY Slip Op 08986 (App. Div., 2nd, 2009)

In order to vacate her default in opposing the defendant's prior motion to dismiss, the plaintiff was required to demonstrate both a reasonable excuse for her default and a meritorious opposition to the motion (see Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 392; Hospital for Joint Diseases v Dollar Rent A Car, 25 AD3d 534; Fekete v Camp Skwere, 16 AD3d 544, 545; Amato v Fast Repair, Inc., 15 AD3d 429, 430; Costanza v Gold, 12 AD3d 551, 552). Although the determination of what constitutes a reasonable excuse lies within the trial court's discretion (see Santiago v New York City Health & Hosps. Corp., 10 AD3d 393, 394; Roussodimou v Zafiriadis, 238 AD2d 568, 569; Grutman v Southgate At Bar Harbor Home Owners' Assn., 207 AD2d 526, 527), and the court has the discretion to accept law office failure as a reasonable excuse (see CPLR 2005), "a pattern of willful default and neglect" should not be excused (Roussodimou v Zafiriadis, 238 AD2d at 569 [internal quotation marks omitted]; see Santiago v New York City Health & Hosps. Corp., 10 AD3d 393; Kolajo v City of New York, 248 AD2d 512; Vierya v Briggs & Stratton Corp., 166 AD2d 645, 645-646; Chery v Anthony, 156 AD2d 414, 417), and the claim of law office failure should be supported by a "detailed and credible" explanation of the default or defaults at issue (Henry v Kuveke, 9 AD3d 476, 479; see Gironda v Katzen, 19 AD3d 644, 645). In this case, the plaintiff's attorney's conclusory, undetailed, and uncorroborated claim of law office failure did not amount to a reasonable excuse (see Forward Door of N.Y., Inc. v Forlader, 41 AD3d 535; Piton v Cribb, 38 AD3d 741; Matter of ELRAC, Inc. v Holder, 31 AD3d 636). In addition, the plaintiff failed to submit an affidavit of merit. Accordingly, the Supreme Court abused its discretion in granting the plaintiff's motion to vacate an order which granted the defendant's motion to dismiss the action upon her default in opposing the motion.

Now, compare that with

Lamar v City of New York, 2009 NY Slip Op 08974 (App. Div., 1st, 2009)

While the City's generalized assertion of law office failure as the excuse for its delay is not particularly compelling, it constitutes "good cause" for the delay (see Spira v New York City Tr. Auth., 49 AD3d 478 [2008]). No prejudice to plaintiff has been shown (see Cirillo v Macy's, Inc., 61 AD3d 538, 540 [2009]), and New York's public policy strongly favors litigating matters on the merits (see Silverio v City of New York, 266 AD2d 129 [1999]). An affidavit of merit is not required where no default order or judgment has been entered (see Cirillo, supra).

Performance Constr. Corp. v Huntington Bldg., LLC, 2009 NY Slip Op 09012 (App. Div., 2nd, 2009).

The Supreme Court providently exercised its discretion in denying that branch of the plaintiff's motion which was for leave to enter a default judgment against the defendant Corcoran Marble & Monument Co., Inc. (hereinafter Corcoran), and in granting Corcoran's cross motion for leave to serve a late answer (see CPLR 3012[d], 5015[a][1]). Considering the lack of any prejudice to the plaintiff as a result of the relatively short 11-day delay in Corcoran's service of an answer, the existence of a potentially meritorious defense, and the public policy favoring the resolution of cases on the merits, the Supreme Court providently excused Corcoran's de minimis delay in answering the complaint (see Klughaupt v Hi-Tower Contrs., Inc., 64 AD3d 545, 546; Schonfeld v Blue & White Food Prods. Corp., 29 AD3d 673, 674; Yonkers Rib House, Inc. v 1789 Cent. Park Corp., 19 AD3d 687, 688). Furthermore, the record reveals that Corcoran was actively engaged in settlement negotiations with the plaintiff's attorney, and that the plaintiff's attorney never mentioned that he would be moving for leave to enter a default judgment (see Armstrong Trading, Ltd. v MBM Enters., 29 AD3d 835, 836; Scarlett v McCarthy, 2 AD3d 623; Lehrman v Lake Katonah Club, 295 AD2d 322). [*2]

Moreover, the Supreme Court properly denied that branch of the plaintiff's motion which was for leave to enter a default judgment against the defendant Tritec Building Co. (hereinafter Tritec). The record reveals that Tritec and the plaintiff entered into a stipulation extending Tritec's time to answer "to and until March 3, 2008." Accordingly, Tritec's service of an answer was timely since the answer was served on March 3, 2008 (see CPLR 320[a]).

The bold is mine.

A Brief CPLR R. 5015 Roundup and CPLR R. 2214(d) Appears For The First Time In this Blog.

CPLR R. 2214 Motion papers; service; time
(d) Order to show cause

MBF Leasing, LLC v Sisco, 25 Misc 3d 128(A) (App. Term, 1st, 2009)

Civil Court correctly denied, without a traverse hearing, that branch of defendant's motion seeking vacatur of the default judgment and dismissal of the complaint for lack of personal jurisdiction under CPLR 5015(a)(4) because defendant failed to sufficiently refute the factual averments contained in plaintiff's process server's affidavit of service. Defendant is nonetheless entitled to vacatur of the default judgment and an opportunity to answer the action on the merits. In light of defendant's potentially meritorious defense to the action (see Pludeman v N. Leasing Sys., 10 NY3d 486 [2008]), the absence of any discernable prejudice to plaintiff (which did not oppose defendant's motion and has not filed a respondent's brief on this appeal), defendant's showing that the default was not willful, and our preference for resolving actions on the merits, we vacate the default judgment under our "inherent discretionary power" to relieve defendant of his default "for sufficient reason and in the interests of substantial justice" (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]; see Siegel, NY Practice § 426, 725 [4th ed]).

Although the court in its discretionary power may vacate a default even though the party did not satisfy any of the conditions in CPLR R. 5015, I don't understand why the court would say that the defendant was entitled to vacatur. Going by Webster's definition of entitle, the word hardly seems to fit. Vacatur was a gift in this case. Also interesting is that the defendant's motion to vacate was unopposed. Neither was the appeal. Unless defendant attached plaintiff's affidavit or service, how was it before the lower court? Judicial Notice?

Speaking of weird…

Merriwether v Osborne, 2009 NY Slip Op 07602 (App. Div., 2nd, 2009)

By order dated May 22, 2007, the Supreme Court granted, apparently without opposition, the defendants' separate motions for summary judgment dismissing, inter alia, the complaint insofar as asserted against them, and a judgment dismissing the complaint was entered subsequently. Although the plaintiff was duly served with both the order and the judgment with notice of entry, he neither appealed nor moved to vacate. Nearly two years later, the Supreme Court, sua sponte, without explanation, vacated the order dated May 22, 2007, and, in effect, the judgment, and denied the defendants' motions for summary judgment.

On appeal, the defendants contend that the Supreme Court exceeded its authority in, sua [*2]sponte, vacating the order and, in effect, the judgment. We agree.

"A trial court has no revisory or appellate jurisdiction, sua sponte, to vacate its own order or judgment" (Adams v Fellingham, 52 AD3d 443, 444-445; see Armstrong Trading, Ltd. v MBM Enters., 29 AD3d 835, 836; Matter of Owens v Stuart, 292 AD2d 677, 678-679; cf. Liss V Trans Auto Sys., 68 NY2d 15, 20). Here, the court exceeded its powers by its unexplained sua sponte attempt to reconsider the summary judgment motions anew almost two years after the case was dismissed by judgment (see Matter of Owens v Stuart, 292 AD2d at 679).

WTF?

Wells Fargo Bank, N.A. v Leiba, 2009 NY Slip Op 07833 (App. Div., 2nd, 2009)

The Supreme Court properly denied the motion of the defendant Lisa Morris to vacate a judgment of foreclosure and sale dated October 27, 2005, as she failed to serve the order to show cause by which the motion was initiated in the manner specified, and within the time provided (see CPLR 2214[d]; Alden Personnel, Inc. v David, 38 AD3d 697, 698).

A bad employee can be a reasonable excuse. See below.

Rodriguez v Rodriguez, 2009 NY Slip Op 08150 (App. Div., 1st, 2009)

Defendant's attorney's representation that a former employee had been misdirecting or misplacing mail provides a reasonable excuse for his failure to present such evidence of law office failure on defendant's original motion to vacate the default judgment as well as his failure to appear in court on various dates (see Solowij v Otis Elev. Co., 260 AD2d 226 [1999]). Defendant's affidavit shows a meritorious defense.

The bold is mine.

CPLR R. 5015(a)(4), CPLR § 317, Service is hard to rebut

CPLR § 308 Personal service upon a natural person
(2) by delivering the summons within the state to a person of suitable age and discretion...
(4) where service under paragraphs one and two cannot be made with due diligence, by affixing the summons to the door

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

Ogunbemi v New York City Hous. Auth., 2009 NY Slip Op 06637 (App. Div., 1st, 2009)

Plaintiffs failed to demonstrate a reasonable excuse for their default (St. Rose v McMorrow, 43 AD3d 1146
[2007]). Their proffered excuse of inability to obtain the expert
engineer's affidavit in a timely manner because he was out of town for
an extended period is unpersuasive because plaintiffs concede they
received the affidavit six days before the motion's return date.
Plaintiffs' excuse that they were unable to obtain their medical
expert's signed affirmation due to the doctor's busy schedule is
similarly unavailing, even assuming that the delay in obtaining the
affirmation was not the result of their own lack of diligence, because
the affirmation was not necessary to oppose the motion in light of the
engineer's affidavit. Finally, the excuse that they misplaced certain
photographs documenting the scene of the accident and the injuries to
the child is unconvincing, not only because it was raised at the
eleventh hour, three months after the motion was filed, but also
because plaintiffs admitted they may have misplaced the photos
themselves, proffered no reason for why the photos were even necessary
to oppose summary judgment given the child's mother's testimony
regarding the layout of the accident scene, and conceded that they had
numerous other photos that would have sufficed if indeed they were
necessary. Nor did plaintiffs meet their burden of demonstrating a
meritorious opposition to the summary judgment motion.

Sturino v Nino Tripicchio & Son Landscaping, 2009 NY Slip Op 06829 (App. Div., 2nd, 2009)

The Supreme Court providently exercised its discretion in denying
that branch of the defendants' motion which was, in effect, pursuant to
CPLR 5015(a)(4) to vacate a clerk's judgment entered upon their default
in appearing or answering the complaint. The process server's
affidavits of service constituted prima facie evidence of proper
service pursuant to CPLR 308(4) (see Mortgage Elec. Registration Sys., Inc. v Schotter, 50 AD3d 983; Olesniewicz v Khan,
8 AD3d 354, 355). The affidavit of the defendant Nino Tripicchio,
submitted on his behalf as well as on behalf of the defendant Nino
Tripicchio & Son Landscaping (hereinafter together the Nino
Tripicchio defendants), consisted of an unsubstantiated denial of
service of the summons and complaint and was insufficient to rebut the
presumption of proper service (see Mortgage Elec. Registration Sys., Inc. v Schotter, 50 AD3d at 983; 96 Pierrepont v Mauro,
304 AD2d 631). The defendant Giovanni Tripicchio made no attempt to
rebut the presumption of proper service, as he failed to submit an
affidavit (see Olesniewicz v Kahn, 8 AD3d at 355).

The Supreme Court providently exercised its discretion in
determining that the Nino Tripicchio defendants were not entitled to
relief pursuant to CPLR 317. They failed to demonstrate that they did
not personally receive notice of the summons and complaint in time to
defend the action (see Cavalry Portfolio Servs., LLC v Reisman, 55 AD3d 524, 525; Caruso v Valentin, 54 AD3d 987).

The bold is mine.

Stipulations, Orders, and Defaults: CPLR R. 5015; CPLR § 2005; CPLR R. 3216; CPLR § 2004

CPLR R. 5015 Relief from judgment or order

CPLR § 2005 Excusable delay or default

Davidson v Valentin, 2009 NY Slip Op 06500 (App. Div., 2nd, 2009)

On October 26, 2007, a stipulation was "so-ordered," in which the
parties consented to the entry of a judgment in favor of the plaintiffs
on their first cause of action, inter alia, to direct the defendants to
repair or replace a retaining wall on the defendants' property in
compliance with the terms of an access agreement executed by the
parties on the same date. The stipulation provided that if the
defendants failed to comply with the terms of the judgment, the parties
would place the remaining causes of action on the trial calendar. After
the defendants failed to timely comply with the terms of the judgment,
the plaintiffs placed the remaining causes of action on the trial
calendar. Thereafter, the defendants obtained multiple adjournments of
the trial date in an effort to comply with the terms of the access
agreement. When the defendants' attorney failed to appear for trial on
the third adjourned date of January 28, 2008, the court held an inquest
on the issue of damages and entered a judgment in favor of the
plaintiffs on February 28, 2008. On April 23, 2008, the defendants
moved to vacate the judgment.

To vacate their default in appearing at the trial, the
defendants were required to demonstrate both a reasonable excuse for
the default and a meritorious defense to the action (see CPLR 5015[a][1]; Zaidi v New York Bldg. Contrs., Ltd., 61 AD3d 747; Vasquez v New York City Hous. Auth., 51 AD3d 781, 782; Conserve Elec., Inc. v Tulger Contr. Corp., 36 AD3d 747). Although the court may, in its discretion, accept law office failure as a reasonable excuse (see CPLR 2005; Putney v Pearlman, 203 AD2d 333), "'a pattern of willful default and neglect' should not be excused" (Roussodimou v Zafiriadis, 238 AD2d 568, 569, quoting Gannon v Johnson Scale Co., 189 AD2d 1052, 1052). The statements by the defendants' attorney regarding his personal problems did [*2]not
adequately explain the defendants' failure to comply with the time and
terms of the court-ordered stipulation, judgment, and access agreement
dated October 26, 2007, and to comply with those terms during the
subsequent extensions of those deadlines, and defense counsel's failure
to appear on the adjourned trial date even though he knew his attempts
to further adjourn the trial had been unsuccessful (see Joseph v GMAC Leasing Corp., 44 AD3d 905; Wechsler v First Unum Life Ins. Co., 295 AD2d 340; Foster v Gherardi, 201 AD2d 701). Furthermore, the defendants failed to demonstrate that they have a meritorious defense (see Buchanan v Cardozo, 24 AD2d 620, 621, affd 16 NY2d 1029). Accordingly, the defendants' motion was properly denied.

The bold is mine.

CPLR R. 3216 Want of prosecution

(b) No
dismissal shall be directed under any portion of subdivision (a) of
this rule and no court initiative shall be taken or motion made
thereunder unless the following conditions precedent have been complied
with:

(3)
The court or party seeking such relief, as the case may be, shall have
served a written demand by registered or certified mail requiring the
party against whom such relief is sought to resume prosecution of the
action and to serve and file a note of issue within ninety days after
receipt of such demand, and further stating that the default by the
party upon whom such notice is served in complying with such demand
within said ninety day period will serve as a basis for a motion by the
party serving said demand for dismissal as against him for unreasonably
neglecting to proceed.

CPLR § 2004 Extensions of time generally

Davis v Cardiovascular Consultants of Long Is., P.C., 2009 NY Slip Op 06501 (App. Div., 2nd, 2009)

An order entered November 7, 2007, which warned the plaintiff that
the failure to serve and file a note of issue would result in dismissal
of the action, had the same effect as a valid 90-day notice pursuant to
CPLR 3216 (see Huger v Cushman & Wakefield, Inc., 58 AD3d 682; Benitez v Mutual of Am. Life Ins. Co., 24 AD3d 708; Giannoccoli v One Cent Park W. Assocs., 15 AD3d 348; Betty v City of New York, 12 AD3d 472).
Having received a 90-day notice, the plaintiff was required either to
file a timely note of issue or to move, before the default date, for an
extension of time pursuant to CPLR 2004 (see Benitez v Mutual of Am. Life Ins. Co., 24 AD3d 708; Bokhari v Home Depot U.S.A., 4 AD3d 381; McKinney v Corby, 295 AD2d 580, 581). The plaintiff did neither, and the action was subsequently dismissed pursuant to CPLR 3216.

To vacate the dismissal of an action pursuant to CPLR 3216, a
plaintiff must demonstrate both a reasonable excuse for the default in
complying with the 90-day notice and a meritorious cause of action (see CPLR 3216[e]; Felix v County of Nassau, 52 AD3d 653; Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d 783).
Here, the plaintiff failed to submit any expert medical opinion
evidence to demonstrate the merit of his medical malpractice action (see Mosberg v Elahi, 80 NY2d 941, 942; Fiore v Galang, 64 NY2d 999, 1000-1001; Salch v Paratore, 60 NY2d 851, 852; Picot v City of New York, 50 AD3d 757; Burke v Klein, 269 AD2d 348, 348-349; Abelard [*2]v Interfaith Med. Ctr., 202 AD2d 615, 616; Feinblum v Dybner, 197
AD2d 560). Accordingly, that branch of his motion which was, in effect,
to vacate the dismissal of the action pursuant to CPLR 3216 should have
been denied.

Strange. Consider CPLR R. 3216(b)(3). Specifically, the "registered or certified" mail part.

Again, 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.

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.

Post-NOT Discovery; 22 NYCRR 202.21

22 NYCRR 202.21 Note of issue and certificate of readiness

CPLR § 3126 Penalties for refusal to comply with order or to disclose

CPLR R. 5515 Taking an appeal; notice of appeal

1. An
appeal shall be taken by serving on the adverse party a notice of
appeal and filing it in the office where the judgment or order of the
court of original instance is entered except that where an order
granting permission to appeal is made, the appeal is taken when such
order is entered. A notice shall designate the party taking the appeal,
the judgment or order or specific part of the judgment or order
appealed from and the court to which the appeal is taken.

Racine v Grant, 2009 NY Slip Op 06127 (App. Div., 2nd, 2009)

The Supreme Court improvidently exercised its discretion in granting
the defendants' cross motion pursuant to CPLR 3216 to dismiss the
complaint to the extent of directing the plaintiff to comply with a
demand for discovery which was annexed to the cross motion papers, as
the demand was made more than one year after a note of issue had been
filed in the action. The defendants failed to make the requisite
showing that "unusual or unanticipated circumstances" had arisen after
the filing of the note of issue (22 NYCRR 202.21[d], [e]; see Silverberg v Guzman, 61 AD3d 955; Utica Mut. Ins. Co. v P.M.A. Corp., 34 AD3d 793, 794; Audiovox Corp. v Benyamini, 265 AD2d 135, 138; Marks v Morrison, 275 AD2d 1027), to justify the demanded disclosure at this late stage of the action.

The plaintiff's argument that the Supreme Court should have
granted his motion to strike the defendants' answer is not properly
before us, as the plaintiff's notice of appeal limited the scope of the
appeal to that part of the Supreme Court's order which determined the
defendants' cross [*2]motion (see CPLR 5515[1]; Marciano v Ran Oil Co., E., LLC, 63 AD3d 1118).

The bold is mine.