NYCRR

Vacatur

CVM Partners 1, LLC v Adams, 173 AD3d 971 [2d Dept. 2019]

No appeal lies from an order or judgment granted upon the default of the appealing party (see CPLR 5511; HSBC Bank USA, N.A. v Gervais, 168 AD3d 692, 693 [2019]; HSBC Bank USA, N.A. v Simms, 163 AD3d 930, 932 [2018]; Adotey v British Airways, PLC, 145 AD3d 748, 749 [2016]). Although “an appeal from such a judgment brings up for review those matters which were the subject of contest before the Supreme Court” (Geffner v Mercy Med. Ctr., 167 AD3d 571, 572 [2018] [internal quotation marks omitted]; see Bottini v Bottini, 164 AD3d 556, 558 [2018]; Alam v Alam, 123 AD3d 1066, 1067 [2014]), the defendant here defaulted at every stage of the proceedings, beginning with his failure to appear or answer the complaint, continuing with his failure to appear on the return dates of his two motions, brought on by orders to show cause, one of which sought to vacate his default in failing to appear at a scheduled court conference, and ending with his failure to oppose the motions that led to the amended judgment of foreclosure and sale appealed from. Accordingly, since there were no “matters which were the subject of contest before the Supreme Court” (Geffner v Mercy Med. Ctr., 167 AD3d at 572 [internal quotation marks omitted]), the appeal must be dismissed in its entirety.

Equity Inv. & Mtge. Co. v Smith, 173 AD3d 690 [2d Dept. 2019]

Although courts have discretionary power to relieve a party from a judgment or order “for sufficient reason and in the interest[ ] of substantial justice” (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]; see Katz v Marra, 74 AD3d 888, 890 [2010]), “[a] court’s inherent power to exercise control over its judgment[ ] is not plenary, and should be resorted to only to relieve a party from judgments taken through [fraud,] mistake, inadvertence, surprise or excusable neglect” (Matter of McKenna v County of Nassau, Off. of County Attorney, 61 NY2d 739, 742 [1984] [internal quotation marks omitted]; see HSBC Bank USA v Josephs-Byrd, 148 AD3d 788, 790 [2017]). Here, the arguments advanced by the City in support of its motion did not constitute grounds for relief, either under CPLR 5015 (a) or pursuant to the Supreme Court’s inherent discretionary power to vacate the judgment for sufficient reason and in the interest of substantial justice (see Matter of McKenna v County of Nassau, Off. of County Attorney, 61 NY2d at 742; HSBC Bank USA v Josephs-Byrd, 148 AD3d at 790; Alexander v New York City Tr. Auth., 35 AD3d 772 [2006]).

Diamond v Leone, 173 AD3d 686 [2d Dept. 2019]

The Supreme Court improvidently exercised its discretion in finding that the plaintiff did not demonstrate a reasonable excuse for her failure to appear on November 28, 2017. In an affirmation in support of the motion, the plaintiff’s attorney submitted a detailed and credible explanation of the law office failure which caused the default in appearing. The plaintiff’s attorney affirmed that an entry in the “Comments” field for the subject appearance date on the “eLaw” website had created confusion as to whether the scheduled appearance had been adjourned from November 28 to November 30, and that the attorney’s law office had repeatedly attempted to contact the Part Clerk on November 27 and November 28 for clarification and had left a voicemail message. The attorney affirmed that when his law office finally communicated directly with the Part Clerk at approximately 11:30 a.m. on November 28, his law office was advised that the case had been dismissed due to the plaintiff’s failure to appear. The attorney’s affirmation was supported by, among other things, printouts from the “eLaw” website. Therefore, the plaintiff provided a reasonable excuse for failing to appear (see 555 Prospect Assoc., LLC v Greenwich Design & Dev. Group Corp., 154 AD3d 909 [2017]; Hobbins v North Star Orthopedics, PLLC, 148 AD3d 784 [2017]; Polsky v Simon, 145 AD3d 693 [2016]). The plaintiff also demonstrated a potentially meritorious cause of action (see 555 Prospect Assoc., LLC v Greenwich Design & Dev. Group Corp., 154 AD3d at 910). Accordingly, the court should have granted the plaintiff’s motion to vacate the “order on default” dated November 28, 2017, and to restore the action to the trial calendar.

Bank of N.Y. Mellon v Ruci, 168 AD3d 799 [2d Dept. 2019]

The appellant’s vague and unsubstantiated claim of law office failure by an unidentified attorney was insufficient to establish a reasonable excuse for her default (see LaSalle Bank, N.A. v LoRusso, 155 AD3d 706, 707 [2017]; U.S. Bank N.A. v Barr, 139 AD3d 937, 938 [2016]; M & T Bank v Morris, 138 AD3d 939 [2016]). Since the appellant failed to establish a reasonable excuse for her default, it is not necessary to determine whether she demonstrated a potentially meritorious defense to the action (see LaSalle Bank, N.A. v LoRusso, 155 AD3d at 706; Bank of N.Y. Mellon v Colucci, 138 AD3d 1047, 1048 [2016]; M & T Bank v Morris, 138 AD3d at 940).

EMC Mtge. Corp. v Walker, 2019 NY Slip Op 06474 [2d Dept. 2019]

Here, when the plaintiff moved, in effect, to vacate the May 2013 order and to restore the action to the calendar, it failed to proffer a reasonable excuse for its default in appearing at the scheduled court conference, and merely alleged that “there was no missed appearance, and as such 22 NYCRR 202.27 does not apply.” Moreover, the plaintiff failed to articulate any basis for the more than 2½-year delay in moving to vacate the order of dismissal (see id. at 1252; Wright v City of Poughkeepsie, 136 AD3d 809). In light of the lack of a reasonable excuse, it is unnecessary to determine whether the plaintiff demonstrated the existence of a potentially meritorious cause of action (see Wright v City of Poughkeepsie, 136 AD3d at 809; Selechnik v Law Off. of Howard R. Birnbach, 120 AD3d 1220). Thus, we disagree with the Supreme Court’s decision to hold a traverse hearing on June 22, 2016, and its subsequent determination granting the plaintiff’s motion, in effect, pursuant to CPLR 5015(a)(1) to vacate the May 2013 order and to restore the action to the calendar, and that branch of the plaintiff’s separate motion which was to extend the time to serve Walker in the interest of justice.

LaSalle Bank, N.A. v Delice, 2019 NY Slip Op 06485 [2d Dept. 2019]

Most importantly, the plaintiff did not provide any explanation as to why it delayed more than five years before filing its motion to vacate, apart from the vague assertion that it hired new counsel because, at some point, the law firm that represented the plaintiff at the time of the January 2011 order subsequently closed. The plaintiff’s contention that the delay was justified because its subsequent counsel expended extensive efforts to comply with Administrative Orders 548/10 and 431/11 of the Chief Administrative Judge of the Courts is raised for the first time on appeal and not properly before us (cf. U.S. Bank N.A. v Ahmed, 137 AD3d 1106, 1108-1109). The plaintiff’s lengthy delay in moving to vacate, failure to adequately explain the delay, and failure to pursue other available avenues of relief support the court’s determination not to exercise its discretion to vacate the dismissal order in the interests of substantial justice (seeHSBC Bank USA v Josephs-Byrd, 148 AD3d at 790; cf. U.S. Bank N.A. v Ahmed, 137 AD3d at 1108-1109).

Certificate of readiness

McKiernan v Vaccaro, 2019 NY Slip Op 00267 [1st Dept. 2019]

“Pursuant to Uniform Rules for Trial Courts, a note of issue must be accompanied by a certificate of readiness, which must state that there are no outstanding requests for discovery and the case is ready for trial” (Slovney v Nasso, 153 AD3d 962, 962; see 22 NYCRR 202.21[a], [b]; Furrukh v Forest Hills Hosp., 107 AD3d 668, 669). Here, the plaintiff’s certificate of readiness stated that significant discovery remained outstanding when the note of issue and certificate of readiness were filed. Since the certificate of readiness failed to materially comply with the requirements of 22 NYCRR 202.21, the filing of the note of issue was a nullity (see Slovney v Nasso, 153 AD3d at 962; Furrukh v Forest Hills Hosp., 107 AD3d at 669). Since the note of issue was a nullity, the plaintiff’s argument that the Supreme Court erred in permitting Mancuso to continue with discovery is without merit. Moreover, the plaintiff’s contention that counsel’s affirmation of good faith in support of Mancuso’s motion to vacate the note of issue was insufficient is without merit (see Suarez v Shapiro Family Realty Assoc., LLC, 149 AD3d 526, 527). Accordingly, we agree with the court’s determination to grant Mancuso’s motion to vacate the note of issue and to permit Mancuso to conduct certain discovery.

Mordekai v City of New York, 2019 NY Slip Op 00431 [2d Dept. 2019]

We agree with the Supreme Court’s denial of that branch of the plaintiff’s cross motion which was, in effect, to impose a sanction on the defendants by precluding them from relying upon certain evidence in support of their motion for summary judgment or introducing such evidence at trial. The plaintiff waived any objection to the adequacy and timeliness of the defendants’ disclosure of certain evidence by filing a note of issue and certificate of readiness stating that disclosure was complete and that there were no outstanding requests for disclosure (see Iscowitz v [*2]County of Suffolk, 54 AD3d 725; Melcher v City of New York, 38 AD3d 376; Simpson v City of New York, 10 AD3d 601). In any event, the plaintiff did not make a showing of willful and contumacious conduct on the part of the defendants, nor did the plaintiff demonstrate that he would be substantially prejudiced by the post-note of issue disclosure of the evidence (see Iscowitz v County of Suffolk, 54 AD3d at 725).

Individual assignment system

JPMorgan Chase Bank, N.A. v Caliguri, 2019 NY Slip Op 00262 [2d Dept. 2019]

22 NYCRR 202.3(a) provides for an individual assignment system which assigns the continuous supervision of each action and proceeding by a single judge. However,”[t]he Uniform Rules for Trial Courts do not deal with the issue of whether related cases should be assigned to the same Judge” (Matter of Morfesis v Wilk, 138 AD2d 244, 246). There is no requirement that related cases be heard by the same judge. Further, as the prior foreclosure action was no longer pending, there existed no “potential for conflicting rulings” (Appolino v Delorbe, 24 AD3d 252, 253; see Clearwater Realty Co. v Hernandez, 256 AD2d 100). Accordingly, it was not an improvident exercise of discretion for the Supreme Court to deny the defendant’s motion pursuant to 22 NYCRR 202.3(a) to transfer the action to the Justice who heard the prior foreclosure action.

Questioning on a matter ruled inadmissible and sanctions

Banks-Dalrymple v Chang, 2019 NY Slip Op 00367 [1st Dept. 2019]

Although the Court did not abuse its discretion in declaring a mistrial for defendant’s counsel’s violation of the court’s in limine ruling, we find that a curative instruction, together with a striking of the impermissible parts of the record, would have sufficed. Accordingly, having declared the mistrial, it was a proper exercise of the court’s discretion to sanction defendants’ counsel, for its prejudicial questioning of plaintiff on a matter ruled inadmissable (Rules of Chief Admin of Cts [22 NYCRR] § 130-1.1; Pickens v Castro, 55 AD3d 443, 444 [1st Dept 2008]). We, however, reduce the sanctions and direct that upon receipt of proof of payment to plaintiff’s experts, defendant’s counsel must reimburse plaintiff’s counsel within 10 days.

Obstfeld v Thermo Niton Analyzers, LLC, 2019 NY Slip Op 00609 [2d Dept. 2019]

Since the plaintiffs have raised arguments on this appeal that appear to be “completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law” (22 NYCRR 130-1.1[c][1]), the appeal may be frivolous (see Carbone v US Bank N.A., 156 AD3d 678, 680; Curet v DeKalb Realty, LLC, 127 AD3d 914, 916; Caplan v Tofel, 65 AD3d 1180, 1181-1182). Accordingly, we direct the submission of affirmations or affidavits on the issue of whether, and in what amount, costs or sanctions in connection with this appeal should or should not be imposed on the plaintiffs.

5015 and 22 NYCRR 202.27

Diaz v Perlson, 2019 NY Slip Op 00194 [1st Dept. 2019]

“A motion to vacate a dismissal for failure to appear at a scheduled court conference (22 NYCRR 202.27) must be supported by a showing of reasonable excuse for the failure to attend the conference and a meritorious cause of action” (Biton v Turco, 88 AD3d 519, 519 [1st Dept 2011]). Even assuming that plaintiff set forth a reasonable excuse for the failure to appear at the conference, the court providently exercised its discretion in denying the motion since plaintiff failed to show a meritorious cause of action (see e.g. Barclay v Etim, 129 AD3d 591 [1st Dept 2015], lv dismissed 28 NY3d 948 [2016]).

Thomas v Karen’s Body Beautiful LLC, 2019 NY Slip Op 00241 [1st Dept. 2019]

We find that the motion court correctly determined that the affidavits constituted mere conclusory denials, which were insufficient to raise an issue of fact as to proper service. (Grinshpun v Borokhovich, 100 AD3d 551, 552 [1st Dept 2012], lv denied 21 NY3d 857 [2013]; Colebrooke Theat. LLP v Bibeau, 155 AD3d 581, 581 [1st Dept 2017], lv dismissed 31 NY3d 1137 [2018]; Reliable Abstract Co., LLC v 45 John Lofts, LLC, 152 AD3d 429, 429 [1st Dept 2017], lv dismissed 30 NY3d 1056 [2018]).

Gamesmanship

Cram v Keller, 2018 NY Slip Op 08007 [2d Dept. 2018]

While defense counsel has the right to hold the plaintiff to the burden of proof on disputed issues, here, the record shows that the defendants’ ownership of the property was never genuinely disputed. In fact, Keller explicitly admitted in a portion of his deposition testimony not read by the plaintiff at trial that he and his wife owned the property. Defense counsel successfully objected to the reading of this testimony despite the lack of any apparent good faith basis in which to do so, making this an exercise in gamesmanship. The defendants did not offer any evidence at trial to dispute their ownership of the property. At an early stage of the case, the defendants submitted an answer to the complaint in which they denied having knowledge or information sufficient to form a belief as to the truth of the plaintiff’s allegation of the defendants’ ownership of the subject property. While the answer was verified by counsel, it is difficult to accept the denial of information sufficient to form a belief as to ownership as having been asserted in good faith, as there is no reason to believe that the defendants did not know that they owned the property, given that Keller admitted at his deposition that he and his wife owned the property. While the defendants did not amend their answer after Keller’s deposition, plaintiff’s counsel knew that the defendants did not dispute ownership and defense counsel knew that as well. Under the circumstances of this case, the defendants’ posttrial motion to set aside the verdict, to the extent predicated on the issue of ownership, was frivolous, given the evidence presented by the plaintiff at trial, the failure of the defendants to offer any contrary evidence at trial, the known fact that the defendants owned the property, the lack of good faith underlying the denial of ownership appearing in the defendants’ answer, and the lack of a good faith basis for the exclusion of the additional deposition testimony that would have eliminated any doubt on the issue of ownership.

22 NYCRR 202.48

Solomon v Burden, 2018 NY Slip Op 07480 [2d Dept. 2018]

The plaintiffs made a second motion for an order of reference. The Supreme Court denied this motion without prejudice, finding that the plaintiffs abandoned their motion for an order of reference since they failed to submit the order of reference within 60 days after the signing and filing of the order directing submission, without showing good cause for their failure, in violation of 22 NYCRR 202.48(a). The plaintiffs then moved, inter alia, in effect, to extend the time to submit an order of reference, and for an order of reference. In the order appealed from, the court granted those branches of the plaintiffs’ motion, excusing the plaintiffs’ failure to submit some of the supporting documents the court had directed them to provide in its earlier order.

” It is within the sound discretion of the court to accept a belated order or judgment for settlement'” (Curanovic v Cordone, 134 AD3d 978, 979, quoting Russo v Russo, 289 AD2d 467, 468; see Dime Sav. Bank of N.Y. v Anzel, 232 AD2d 446). “Moreover, a court should not deem an action or judgment abandoned where the result would not bring the repose to court proceedings that 22 NYCRR 202.48 was designed to effectuate, and would waste judicial resources'” (Curanovic v Cordone, 134 AD3d at 979, quoting Meany v Supermarkets Gen. Corp., 239 AD2d 393, 394; see Zaretsky v Ok Hui Kim, 17 AD3d 455, 456; Matter of Argento v New York State Div. of Hous. & Community Renewal, 269 AD2d 443, 444; Crawford v Simmons, 226 AD2d 667).

Here, under the particular facts of this case, the interests of justice dictate that the court not be burdened with a trial where liability is certain. To hold otherwise would be contrary to the intent of 22 NYCRR 202.48 and would lead to a waste of judicial resources (see Russo v City of New York, 206 AD2d 355, 356). Accordingly, the Supreme Court providently exercised its discretion in granting that branch of the plaintiffs’ motion which was, in effect, to extend their time to submit an order of reference.

The Supreme Court also did not violate the law of the case doctrine in excusing the plaintiffs’ failure to submit some of the supporting documents the court had directed them to provide in its earlier order. Generally, a plaintiff in a foreclosure action who is awarded summary judgment on the complaint is entitled to an order of reference appointing a referee (see e.g. Citibank, N.A. v Gentile, 156 AD3d 859). Consequently, the court’s original direction, made after the plaintiffs had already been awarded summary judgment, that supporting documents be submitted along with an order of reference was a discretionary ruling to which the law of the case doctrine does not apply (see Clark v Great Atl. & Pac. Tea Co., Inc., 23 AD3d 510, 511; Latture v Smith, 304 AD2d 534; Brothers v Bunkoff Gen. Contrs., 296 AD2d 764, 765).

Appeal from Judgment: 5501

Anderson & Anderson LLP-Guangzhou v North Am. Foreign Trading Corp., 2018 NY Slip Op 06971 [1st Dept. 2018]

The February 2017 order, which denied plaintiffs’ motion to vacate an October 2014 order that disqualified counsel for plaintiffs, and the September 2017 order, which denied plaintiffs’ motion for leave for West to appear as counsel, are not brought up for review by the instant appeal from the judgment, because they do not “necessarily affect[] the final judgment” (see CPLR 5501[a][1]; Paul v Cooper, 100 AD3d 1550, 1552 [4th Dept 2012], lv denied 21 NY3d 855 [2013]). However, the November 2016 order, which granted defendant’s motion to vacate the note of issue and denied plaintiffs’ motion for summary judgment, is reviewable, because, if reversed, it could be dispositive (see CPLR 5501[a][1]; Siegmund Strauss, Inc. v East 149th Realty Corp., 20 NY3d 37, 41-43 [2012]).

Vacatur

2004 McDonald Ave. Corp. v KGYM Holdings Group, Inc., 2018 NY Slip Op 06508 [2d Dept. 2018]

CPLR 317 applies where a defendant was served by means other than personal delivery, did not receive notice of the action, and has a potentially meritorious defense (see Booso v Tausik Bros. LLC., 148 AD3d 1108). Here, the defendants claimed they were never served. Therefore, they sought to vacate the default judgment against them pursuant to CPLR 5015(a)(4) for lack of personal jurisdiction. On this point, the affidavit of service of a process server generally constitutes prima facie evidence of proper service (see US Bank N.A. v Ramos, 153 AD3d 882; Central Mtge. Co. v Ward, 127 AD3d 803). In this case, however, the process server submitted affidavits of exercising due diligence to attempt service, not affidavits of service.

If service is not made, the default judgment is a nullity (see Ariowitsch v Johnson, 114 AD2d 184). If a defendant is not served, “notice received by means other than those authorized by statute cannot serve to bring a defendant within the jurisdiction of the court” (Feinstein v Bergner, 48 NY2d 234, 241).

Sposito v Cutting, 2018 NY Slip Op 06782 [2d Dept. 2018]

“As a general rule, a defendant who seeks to vacate a default in appearing at a compliance conference is required to demonstrate both a reasonable excuse for the default and a potentially meritorious defense” (Foley Inc. v Metropolis Superstructures, Inc., 130 AD3d 680, 680; see Polsky v Simon, 145 AD3d 693). Here, the defendant demonstrated a reasonable excuse for his failure to appear at the compliance conference on November 29, 2016, including the fact that he had been hospitalized from mid-September to late October 2016 for injuries sustained in a fall. In addition, notice of the conference was sent to the subject property and, although the defendant’s grandson resided there, it was never the defendant’s residence and the defenedant denied any knowledge of the November 29, 2016, conference. The defendant also demonstrated that he did not receive notice of the adjourned conference date of January 24, 2017, and the record is devoid of any evidence demonstrating that such notice was, in fact, given to him. Under such circumstances, the defendant’s nonappearance for the conference on January 24, 2017, could not constitute a default, as there was no failure to perform a legal duty (see Notaro v Performance Team, 161 AD3d 1093; Foley Inc. v Metropolis Superstructures, Inc., 130 AD3d at 681). “This is analogous to the situation of a defendant who has not been served with process and suffers a default judgment. In both situations, the default’ is a nullity along with the remedy the court renders in response” (Pelaez v Westchester Med. Ctr., 15 AD3d 375, 376). As the defendant’s default in appearing at the conference on January 24, 2017, is considered a nullity, vacatur of that default ” is required as a matter of law and due process, and no showing of a potentially meritorious defense is required'” (Notaro v Performance Team, 161 AD3d at 1095, quoting Bonik v Tarrabocchia, 78 AD3d 630, 632; see Matter of 542 A Realty, LLC, 118 AD3d 993, 994; Pavlou v Associates Food Stores, Inc., 96 AD3d 919). Therefore, the Supreme Court should have vacated the default and the notice of inquest as a matter of law and due process, and no showing of a potentially meritorious defense was required.

In addition, the Supreme Court should have granted that branch of the defendant’s motion which was to vacate the note of issue and certificate of readiness. Since the defendant moved for such relief more than 20 days after service of the note of issue and certificate of readiness, he had to show good cause for vacatur (see 22 NYCRR 202.21[e]). “To satisfy the requirement of good cause,’ the party seeking vacatur must demonstrate that unusual or unanticipated circumstances developed subsequent to the filing of the note of issue and certificate of readiness requiring additional pretrial proceedings to prevent substantial prejudice'” (Ferraro v North Babylon Union Free School Dist., 69 AD3d 559, 561, quoting White v Mazella-White, 60 AD3d 1047, 1049 [internal quotation marks omitted]). Here, for the reasons set forth above, particularly that the defendant’s failure to appear at the conference on January 24, 2017, did not constitute a default and warranted vacatur of the default and the notice of inquest as a matter of law and due process, the defendant established good cause for vacating the note of issue and certificate of readiness.

Accordingly, the Supreme Court should have granted the defendant’s motion pursuant to CPLR 5015(a)(1) to, in effect, vacate his default in appearing for two scheduled court conferences

Rosario v Naranjo, 2018 NY Slip Op 06780 [2d Dept. 2018]

A defendant seeking to vacate a default in appearing or answering the complaint pursuant to CPLR 5015(a)(1) must demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A. C. Dutton Lbr. Co., 67 NY2d 138, 141; Goldfarb v Zhukov, 145 AD3d 757, 758; Li Fen Li v Cannon Co., Inc., 155 AD3d 858, 859). “Whether there is a reasonable excuse for a default is a discretionary, sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits” (Harcztark v Drive Variety, Inc., 21 AD3d 876, 876-877; see Gomez v Gomez-Trimarchi, 137 AD3d 972, 973).

A.G. Parker, Inc. v 246 Rochester Partners, LLC, 2018 NY Slip Op 06711 [2d Dept. 2018]

A party is precluded from moving to vacate its default on grounds asserted in a prior motion to vacate the default that had been previously denied in an order from which it took no appeal as well as on grounds that were apparent at the time that the party made the prior motion but were not asserted therein (see U.S. Bank N.A. v Davis, 161 AD3d 808; LaSalle Natl. Bank Assn. v Odato, 126 AD3d 675, 676; Eastern Sav. Bank, FSB v Brown, 112 AD3d 668, 670; Lambert v Schreiber, 95 AD3d 1282, 1283; Bianco v Dougherty, 54 AD2d 681).

Itshaik v Singh, 2018 NY Slip Op 06888 [2d Dept. 2018]

“When a defendant seeking to vacate a default judgment raises a jurisdictional objection pursuant to CPLR 5015(a)(4), the court is required to resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur of the default under CPLR 5015(a)(1)” (Canelas v Flores, 112 AD3d 871, 871; see Community W. Bank, N.A. v Stephen, 127 AD3d 1008, 1009; HSBC Bank USA, N.A. v Miller, 121 AD3d 1044, 1045). A defendant moving to vacate a judgment entered upon his or her default in appearing or answering the complaint on the ground of lack of personal jurisdiction “is not required to demonstrate a reasonable excuse for the default and a potentially meritorious defense” (Prudence v Wright, 94 AD3d 1073, 1073; see Falvo v Cerra, 127 AD3d 919, 920). “[T]he failure to serve process in an action leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void” (Krisilas v Mount Sinai Hosp., 63 AD3d 887, 889 [internal quotation marks omitted]).

Here, through his submissions, the defendant established that the Supreme Court did not acquire personal jurisdiction over him (see CPLR 5015[a][4]). The plaintiff contends that the defendant was estopped from challenging service upon him at the West End Avenue address pursuant to Vehicle and Traffic Law § 505(5), which requires that every motor vehicle licensee notify the Commissioner of the DMV of any change in residence within 10 days of the change and make a notation of such change of residence on the license. However, under the circumstances of this case, where the defendant did not provide the West End Avenue address at the time of the accident, where the record does not contain a DMV driver’s abstract for the defendant, and where the plaintiff identified the motor vehicle allegedly involved in this accident as belonging to a neighbor, the plaintiff’s contention is without merit (cf. Canelas v Flores, 112 AD3d at 871-872). Accordingly, we agree with the Supreme Court’s granting of the defendant’s motion to vacate the order dated July 11, 2016, and for leave to serve a late answer, based on lack of jurisdiction (see CPLR 5015[a][4]; Falvo v Cerra, 127 AD3d at 920).

In light of our determination of the jurisdictional issue, we need not reach the parties’ contentions regarding a discretionary vacatur pursuant to CPLR 5015(a)(1). Moreover, the parties’ contentions regarding CPLR 317, which were not raised before the Supreme Court, are not properly before this Court.

CPLR 5015 (repeated neglect and not so repeated neglect)

Zovko v Quittner Realty, LLC, 2018 NY Slip Op 04775 [2d Dept 2018]

A defendant seeking to vacate an order awarding a default must demonstrate both a reasonable excuse for the default and the existence of a potentially meritorious defense (see CPLR 5015[a][1]; Skutelsky v JN Natural Fruit Corp., 138 AD3d 1099, 1100; Orwell Bldg. Corp. v Bessaha, 5 AD3d 573, 574; Quis v Bolden, 298 AD2d 375). The defendant failed to demonstrate a reasonable excuse for its default. The defendant's mistaken belief that its insurer would provide a defense and answer the summons and complaint on its behalf was unreasonable given its insurer's reservation of rights letter and request for a copy of any summons served upon the defendant, and the plaintiffs' motion for leave to enter a default judgment (see Medas v Rochpark Realty, LLC, 150 AD3d 1221, 1223; Spitzer v Landau, 104 AD3d 936, 936-937; Trepel v Greenman-Pedersen, Inc., 99 AD3d 789, 791; Jackson v Professional Transp. Corp., 81 AD3d 602, 603; Lemberger v Congregation Yetev Lev D'Satmar, Inc., 33 AD3d 671, 672). Furthermore, this alleged mistake was not an isolated error, but part of a pattern of "repeated neglect" (Roussodimou v Zafiriadis, 238 AD2d 568, 569; see Wells Fargo Bank, N.A. v Krauss, 128 AD3d 813, 814; Alterbaum v Shubert Org., Inc., 80 AD3d 635, 636; Majestic Clothing Inc. v East Coast Stor., LLC, 18 AD3d 516, 518). In this regard, the defendant was aware of the default order, but took no steps to vacate the default until five months after its insurer disclaimed coverage (see Wells Fargo Bank, N.A. v Krauss, 128 AD3d at 815; Miller v Ateres Shlomo, LLC, 49 AD3d 612, 613; Thompson v Steuben Realty Corp., 18 AD3d 864, 865; Robinson v 1068 Flatbush Realty, Inc., 10 AD3d 716, 716-717). Since the defendant failed to demonstrate a reasonable excuse for its default, we need not reach the issue of whether it demonstrated the existence of a potentially meritorious defense (see Medas v Rochpark Realty, LLC, 150 AD3d at 1223; Jing Shan Chen v R & K 51 Realty, Inc., 148 AD3d 689, 691; Bernstein v Geiss, 111 AD3d 774, 775).

New York Vein Ctr., LLC v Dovlaryan, 2018 NY Slip Op 04744 [2d Dept 2018]

In seeking to vacate their defaults in appearing at a compliance conference and in opposing the plaintiff's motion to strike their answer, the defendants were required to demonstrate both a reasonable excuse for their defaults and a potentially meritorious defense (see CPLR 5015[a][1]; 22 NYCRR 202.27[a]; 555 Prospect Assoc., LLC v Greenwich Design & Dev. Group Corp., 154 AD3d 909; Prudence v White, 144 AD3d 655, 656). The defendants failed to establish a reasonable excuse for their failure to (1) appear at the compliance conference, (2) oppose the plaintiff's motion to strike their answer, (3) respond to their former attorney's motion to withdraw as counsel, and (4) appear at the inquest on the issue of damages. Moreover, the record shows that the defendants took no steps to ascertain the status of this case for a period of more than two years. Furthermore, where, as here, there is a pattern of default and neglect, the negligence of the defendants' former attorney is properly imputed to the client (see Carillon Nursing & Rehabilitation Ctr., LLP v Fox, 118 AD3d 933, 934; Santiago v Santana, 54 AD3d 929, 930; Dave Sandel, Inc. v Specialized Indus. Servs. Corp., 35 AD3d 790, 791; Edwards v Feliz, 28 AD3d 512, 513; MRI Enters. v Amanat, 263 AD2d 530, 531). Since the defendants failed to demonstrate a reasonable excuse for their defaults, we need not reach the issue of whether they demonstrated the existence of a potentially meritorious defense to the action or the plaintiff's motion to strike their answer (see Bernstein v Geiss, 111 AD3d 774, 775).

Lee v Latendorf, 2018 NY Slip Op 04709 [2d Dept. 2018]

In order to vacate a default in appearing at a scheduled court conference, a plaintiff must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action (see CPLR 5015[a][1]; Stein v Doukas, 157 AD3d 743, 744; One West Bank, FSB v Singer, 153 AD3d 714, 715; Gallery v Messerschmitt, 151 AD3d 940; Wright v City of Poughkeepsie, 136 AD3d 809). "A determination of whether an excuse is reasonable lies within the sound discretion of the Supreme Court" (Stein v Doukas, 157 AD3d 743, 744). Although a court has discretion to accept law office failure as a reasonable excuse (see CPLR 2005), "a pattern of willful default and neglect should not be excused" (Prudence v White, 144 AD3d 655, 656; see Whitestone Constr. Corp. v Nova Cas. Co., 129 AD3d 831, 832). A claim of law office failure must be supported by a detailed and credible explanation of the default at issue, as mere neglect is not a reasonable excuse (see Ki Tae Kim v Bishop, 156 AD3d 776; One West Bank, FSB v Singer, 153 AD3d at 716; Onishenko v Ntansah, 145 AD3d 910).

Here, the Supreme Court providently exercised its discretion in determining that the plaintiffs did not offer a reasonable excuse for their default. The excuse proffered by the plaintiffs' former attorney, that he failed to appear at the May 19, 2015, conference due to a malfunctioning GPS system and that he "got lost," was unreasonable under the circumstances, as it was not a detailed and credible explanation for the claimed law office failure. Moreover, the plaintiffs failed to set forth any excuse, let alone a reasonable one, for their former attorney's failure to appear at the compliance conference scheduled for February 18, 2015, or why he arrived late for the adjourned conference on February 26, 2015.

Since the plaintiffs failed to offer a reasonable excuse for their default, the issue of whether they had a potentially meritorious cause of action need not be addressed (see Stein v Doukas, 157 AD3d 743; Ki Tae Kim v Bishop, 156 AD3d 776).

Chase Manhattan Bank v Nath, 2018 NY Slip Op 04695 [2d Dept 2018]

Moreover, the defendant's contention that the plaintiff fraudulently obtained the judgment of foreclosure and sale by making false allegations in the complaint about its standing and capacity to commence the action and by submitting fraudulent documents to the court amount to an allegation of intrinsic fraud (see PennyMac Corp. v Weiss, 152 AD3d 712, 714; US Bank N.A. v Galloway, 150 AD3d 1174, 1175; U.S. Bank, N.A. v Peters, 127 AD3d 742, 742-743). The defendant failed to provide any evidence of fraud, mistake, inadvertence, surprise, or excusable neglect that would constitute a basis for vacatur of the judgment of foreclosure and sale in the interests of substantial justice (see Wells Fargo Bank Minn., N.A. v Coletta, 153 AD3d 757, 758).

In addition, lack of standing and lack of capacity are not defects that deprive a court of subject matter jurisdiction for purposes of CPLR 5015(a)(4) (see Behringer v 19407 Linden, LLC, 139 AD3d 777, 778; Mortgage Elec. Registration Sys., Inc. v Gifford, 133 AD3d 429, 430-431; Wells Fargo Bank, N.A. v Rooney, 132 AD3d 980, 983; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239). In any event, the defendant waived these defenses by failing to assert them in his answer or a pre-answer motion to dismiss (see Bank of Am., N.A. v Cudjoe, 157 AD3d 653; Wells Fargo Bank, N.A. v Erobobo, 127 AD3d 1176, 1177; Security Pac. Natl. Bank v Evans, 31 AD3d 278, 280).

Additionally, the defendant failed to demonstrate his entitlement to vacatur pursuant to CPLR 5015(a)(2) based on newly discovered evidence. Even if the evidence proffered was new within the meaning of the statute, the defendant failed to establish that the newly discovered evidence probably would have produced a different result (see Bank of N.Y. v Tobing, 155 AD3d 596, 596; US Bank N.A. v Galloway, 150 AD3d at 1175; IMC Mtge. Co. v Vetere, 142 AD3d 954, 955; Washington Mut. Bank v Wade, 119 AD3d 930, 931).

The bold is mine.