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 909Prudence 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 940Wright 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 776One 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 743Ki 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 653Wells 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.

(Restored): 202.21 and 202.27. A peculiar set of facts.

22 NYCRR 202.21 Note of issue and certificate of readiness

22 NYCRR 202.27 Defaults

Soo Ji Kim v Seney, 2012 NY Slip Op 00774 (2nd Dept., 2012)

On January 25, 2010, the Supreme Court struck the action from the trial calendar after the plaintiff appeared for the calendar call but was not ready for trial. There was no order vacating the note of issue pursuant to 22 NYCRR 202.21(e). Accordingly, contrary to the defendant's contention, in moving to restore the action to the trial calendar, the plaintiff was not required to submit a certificate of readiness or show that the case was ready for trial (see 22 NYCRR 202.21[f]; Ross v Brookdale Univ. Hosp. & Med. Ctr., 54 AD3d 370, 371). Furthermore, since the plaintiff moved to restore the action to the trial calendar within one year of the date it was stricken, restoration was automatic (see CPLR 3404; Ross v Brookdale Univ. Hosp. & Med. Ctr., 54 AD3d at 371; Kohn v Citigroup, Inc., 29 AD3d 530, 532; Basetti v Nour, 287 AD2d 126, 133-134).

Moreover, after the matter was stricken from the trial calendar, there was no order [*2]dismissing the action pursuant to 22 NYCRR 202.27 (see Mitskevitch v City of New York, 78 AD3d 1137, 1138; Casavecchia v Mizrahi, 62 AD3d 741, 742; Burdick v Marcus, 17 AD3d 388). Accordingly, the plaintiff's motion to reinstate the note of issue should have been granted, and, upon renewal and reargument, the plaintiff's motion to restore the action to the trial calendar should have been granted.

NYCRR 202.27; 22 NYCRR 202.21

22 NYCRR 202.27 Defaults

22 NYCRR 202.21 Note of issue and certificate of readiness

Donnelly v Treeline Cos., 66 AD3d 563 (App. Div., 1st, 2009)

A motion to vacate a dismissal for failure to appear at a scheduled court conference (22 NYCRR 202.27) is governed by CPLR 5015. Such a motion must be made within one year of service of a copy of the dismissal order with notice of entry, and be supported by a showing of reasonable excuse for the failure to attend the conference and a meritorious cause of action. Where the dismissal order has never been served with notice of entry, there is no time limit on making a motion to vacate the dismissal, and any alleged prejudice caused by postdismissal delay, short of laches, is not a consideration (Acevedo v Navarro, 22 AD3d 391 [2005]).

Plaintiff demonstrates both a reasonable excuse and the existence of a meritorious cause of action. The fact that none of the parties appeared for the scheduled court conference in July 2002 indicates that plaintiff's default was reasonable and likely attributable to the court's failure [*2]to notify everyone about the conference, whose date is not found in any prior conference order. Plaintiff's former attorney averred that his office was never notified of the conference or informed of the dismissal. Lack of receipt of notice can be a valid excuse for failure to appear at a conference (see Latha Rest. Corp. v Tower Ins. Co., 285 AD2d 437 [2001]).

Plaintiff has also established a meritorious cause of action. Indeed, on a prior appeal in 2004 (13 AD3d 143 [2004]), we affirmed the existence of numerous triable issues of fact concerning the liability of defendants Treeline and Commercial, and also of third-party defendant Republic.

Defendants contend that plaintiff's delay in moving to vacate the section 202.27 dismissal amounted to laches. While defendants were not apparently prejudiced in the two years immediately after the dismissal, during which they continued actively litigating, the case did thereafter remain inactive for a three-year period until plaintiff's motion to vacate the dismissal in 2007. This delay, though lengthy, was not unreasonable. In any event, defendants have not alleged prejudice from this delay, other than in conclusory fashion.

Figueroa v Sanchez, 2009 NY Slip Op 08881 (App. Div., 1st, 2009)

Due to his incarceration, plaintiff defaulted by failing to appear at a preliminary conference (22 NYCRR 202.27). The only remedy for plaintiff's default in these circumstances is not an appeal, but rather a motion in Supreme Court to vacate the default (see Campos v New York City Health & Hosps. Corp., 307 AD2d 785, 786 [2003]). In the present posture of the case, there is no appealable order for this Court to review. Finally, we note that plaintiff claims that he made numerous attempts to communicate with the court about his appearances that were not addressed.

Gaskin v Ilowitz, 2010 NY Slip Op 00097 (App. Div., 2nd, 2010)

The plaintiff's certificate of readiness incorrectly stated that the bill of particulars, physical examinations, exchange of medical reports, and any discovery proceedings known to be necessary were waived. In addition, it falsely declared that preliminary proceedings had been completed and that the case was ready for trial. Because of these misstatements of material facts, that branch of the defendant's motion which was to vacate the note of issue was properly granted (Brown v Astoria Fed. Sav., 51 AD3d 961, 962; see 22 NYCRR 202.21[e]; Gregory v Ford Motor Credit Co., 298 AD2d 496, 497; Spilky v TRW, Inc., 225 AD2d 539, 540).

Ferraro v North Babylon Union Free School Dist., 2010 NY Slip Op 00095 (App. Div., 2nd, 2010)

A motion for vacatur of the note of issue and certificate of readiness made more than 20 days after their filing will be granted only where "a material fact in the certificate of readiness is incorrect" or upon "good cause shown" (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" (White v Mazella-White, 60 AD3d 1047, 1049, quoting Utica Mut. Ins. Co. v P.M.A. Corp., 34 AD3d 793, 794). Here, the plaintiffs neither proffered an excuse for their delay (id. at 794), nor "demonstrate[d] . . . unusual or unanticipated circumstances" (White v Mazella-White, 60 AD3d at 1049). Accordingly, the court properly denied that branch of the plaintiffs' cross motion which was to vacate the note of issue and certificate of readiness.

Singh v City of New York, 2009 NY Slip Op 09646 (App. Div., 2nd, 2009)

[T]hat branch of the defendants' motion which, in effect, was to compel the plaintiffs to respond to additional discovery demands regarding the immigration status of the plaintiff Harminder Singh is denied. While the Supreme Court may, in its discretion, grant permission to conduct additional discovery after the filing of a note of issue and certificate of readiness where the moving party demonstrates that "unusual or unanticipated circumstances" developed subsequent to the filing which require additional pretrial proceedings to prevent substantial prejudice (see 22 NYCRR 202.21[d]; Audiovox Corp. v Benyamini, 265 AD2d 135, 138; Futersak v Brinen, 265 AD2d 452), here, the defendants failed to establish any such unusual or unanticipated circumstances that would warrant the additional post-note-of-issue discovery they sought (see 22 NYCRR 202.21[d]; Audiovox Corp. v Benyamini, 265 AD2d 135; Futersak v Brinen, 265 AD2d 452). The defendants also failed to establish that the denial of their request would cause them actual, substantial prejudice (see Audiovox Corp. v Benyamini, 265 AD2d at 139).

The bold is mine.

22 NYCRR 202.27 requires CPLR R. 5015 analysis.

22 NYCRR 202.27 Defaults

At any
scheduled call of a calendar or at any conference, if all parties do
not appear and proceed or announce their readiness to proceed
immediately or subject to the engagement of counsel, the judge may note
the default on the record and enter an order as follows:

(b) If the defendant appears but the plaintiff does
not, the judge may dismiss the action and may order a severance of
counterclaims or cross-claims.

Brown v Vanchieri, 2009 NY Slip Op 05942 (App. Div., 2nd, 2009)

Where, as here, an action on the trial calendar is dismissed pursuant
to 22 NYCRR 202.27(b), the dismissal of the action may be vacated, and
the action restored to the trial calendar, only if the plaintiff can
demonstrate both a reasonable excuse for the default and a meritorious
cause of action (see CPLR 5015[a][1]
; Santiago v Santana, 54 AD3d 929, 930; Cazeau v Paul, 2 AD3d 477).
Under all of the circumstances, including the plaintiff's failure to
provide a reasonable excuse for his lengthy delay in moving for that
relief, the Supreme Court providently exercised its discretion in
denying the plaintiff's motion (see Seven Acre Wood St. Assoc. v Wood, 286 AD2d 432; Piacentini v Mineola Union Free School Dist., 267 AD2d 290, 291; cf. Matter of Putnam County Natl. Bank v JP Morgan Chase Bank, N.A., 57 AD3d 677, 678; Malik v Noe, 54 AD3d 733, 734).

The bold is mine.


22 NYCRR 202.27; Adjournments

22 NYCRR 202.27 Defaults

At any
scheduled call of a calendar or at any conference, if all parties do
not appear and proceed or announce their readiness to proceed
immediately or subject to the engagement of counsel, the judge may note
the default on the record and enter an order as follows:

(a) If the plaintiff appears but the defendant does not, the judge may grant judgment by default or order an inquest.

(b) If the defendant appears but the plaintiff does
not, the judge may dismiss the action and may order a severance of
counterclaims or cross-claims.

(c) If no party appears, the judge may make such order as appears just.

Vorontsova v Priolo, 2009 NY Slip Op 03053 (App. Div., 1st, 2009)

Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.),
entered February 13, 2008, which, in an action for medical malpractice,
denied plaintiff's motion to vacate the court's dismissal of the action
due to plaintiff's failure to proceed to trial, unanimously reversed,
on the law and the facts, without costs, the motion granted, and the
action restored to the trial calendar.

The court improvidently exercised its discretion in sua sponte
dismissing the action for failure to proceed to trial rather than
marking it off the trial calendar. The record shows that defendants had
not moved for dismissal of the action, that this was the first time
plaintiff had sought an adjournment, which the parties had agreed to
due to the unavailability of plaintiff's expert, and that both parties
appeared at the calendar call although plaintiff's counsel had to
temporarily leave to tend to another matter (see 22 NYCRR 202.27
; Danne v Otis El. Corp., 31 AD3d 599 [2006]; Rodriguez v Pisa Caterers,
146 AD2d 686 [1989]). Furthermore, in seeking restoration, plaintiff
sufficiently demonstrated both a reasonable excuse and a meritorious
cause of action (CPLR 5015[a]).

The bold is mine