You are here: / / Motion to Renew Granted in Interest of Justice Despite Knowledge of Facts...

Motion to Renew Granted in Interest of Justice Despite Knowledge of Facts at Time of Original Motion/Motion to Vacate Default Granted Based On Law Office Failure

The Second Department determined a motion to renew was properly granted, in the interest of justice, even though the facts were known at the time of the original motion.  The court also determined, under the facts, the motion to vacate a default judgment was properly granted on the ground of law office failure:

A motion for leave to renew must be based upon new facts not offered on the prior motion which would change the prior determination, and must contain a reasonable justification for the failure to present such facts on the prior motion (see CPLR 2221[e][2]…). However, “[t]he rule is not inflexible, and renewal may be granted in the court’s discretion, in the interest of justice, even on facts that were known to the movant at the time of the original motion” … . Under the circumstances of this case, the Supreme Court providently exercised its discretion in granting that branch of the motion of the defendants …  which was for leave to renew that branch of their prior motion which was pursuant to CPLR 5015 to vacate so much of a prior order of the same court as granted the plaintiff’s unopposed motion for leave to enter a default judgment … .

Upon renewal, the Supreme Court also properly permitted the Lee defendants to interpose an answer to the complaint and precluded the plaintiff from enforcing the default judgment … . In moving pursuant to CPLR 5015(a)(1) to vacate a default, the movant is required to demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action … . The Supreme Court has the discretion to accept law office failure as a reasonable excuse (see CPLR 2005). Here, the … defendants’ principal affirmed that he retained prior counsel to oppose the plaintiff’s motion for leave to enter a default judgment, but that prior counsel nevertheless failed to oppose the motion, which was granted without opposition. Under such circumstances, the Supreme Court providently exercised its discretion in accepting this explanation as an excusable default … . The …defendants also demonstrated a potentially meritorious defense to the action … . In addition, there was no showing of prejudice to the plaintiff from the delay in answering, and no evidence of an intent by the Lee defendants to abandon any defenses to the action.  Shin v ITCI Inc, 2014 NY Slip Op 01600, 2nd Dept 3-12-14

 

You might also like
A DEFENDANT CAN NOT BE CONVICTED OF BOTH FORGERY AND POSSESSION OF A FORGED INSTRUMENT WITH RESPECT TO THE SAME FORGED INSTRUMENT (SECOND DEPT).
DEFENDANT TOOK A KEY, GOT IN A U-HAUL VAN, SAT FOR TWO MINUTES AND GOT OUT OF THE VAN; THE PEOPLE DID NOT PROVE DEFENDANT INTENDED TO PERMANENTLY DEPRIVE THE OWNER OF ITS PROPERTY; GRAND LARCENY AND POSSESSION OF STOLEN PROPERTY CONVICTIONS REVERSED (SECOND DEPT).
SERVICE OF CLAIM BY REGULAR MAIL VIOLATED COURT OF CLAIMS ACT SECTION 11, CLAIM PROPERLY DISMISSED (SECOND DEPT).
U-HAUL DID NOT DEMONSTRATE IT WAS FREE FROM NEGLIGENCE IN MAINTAINING ITS TRUCK IN THIS VEHICLE-ACCIDENT CASE, MOTION TO DISMISS PROPERLY DENIED.
FAILURE TO ANSWER SOME QUESTIONS AT THE 50-H HEARING REQUIRED DISMISSAL OF THIS FALSE ARREST AND FALSE IMPRISONMENT ACTION (SECOND DEPT).
PLAINTIFF, WHO HAD THE RIGHT OF WAY, DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS BUS-CAR COLLISION CASE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.
THE FOLD-DOWN LADDER WHICH WAS PERMANENTLY ATTACHED TO THE CEILING WAS THE FUNCTIONAL EQUIVALENT OF A LADDER FOR GAINING ACCESS TO THE ATTIC; PLAINTIFF FELL WHEN THE LADDER DETACHED FROM THE CEILING; PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION (SECOND DEPT). ​
Abuse of Discretion to Grant Motion for Leave to Amend Answer On the Eve of Trial

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Defendant Properly Sentenced As a Youthful Offender on One Indictment But Not... Conclusory and Unsupported Affidavit from Plaintiff’s Expert Did Not Raise...