New York Appellate Digest
  • Home
  • About
  • Just Released
  • Update Service
  • Streamlined Research
  • CLE Courses
  • Contact
  • Menu Menu
You are here: Home1 / Civil Procedure2 / MOTION TO VACATE DEFAULT JUDGMENT MORE THAN A YEAR AFTER THE JUDGMENT WAS...
Civil Procedure

MOTION TO VACATE DEFAULT JUDGMENT MORE THAN A YEAR AFTER THE JUDGMENT WAS ENTERED SHOULD NOT HAVE BEEN GRANTED, ALTHOUGH THE COURT HAD THE POWER TO VACATE THE JUDGMENT IN THE INTEREST OF JUSTICE, DEFENDANT DID NOT OFFER A REASONABLE EXCUSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant nursing home’s motion to vacate a default judgment, made more than a year after the default judgment, should not have been granted. The nursing home did not offer a reasonable excuse:

A defendant moving pursuant to CPLR 5015(a)(1) to vacate a default in appearing or answering the complaint must demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action … . “Such motion must be made within one year after service of a copy of the . . . order with written notice of its entry upon the moving party'” . “[A]lthough the Supreme Court has the inherent authority to vacate an order in the interest of justice even where the statutory one-year period under CPLR 5015(a)(1) has expired”… , here, the nursing home failed to demonstrate a reasonable excuse for its delay in moving to vacate the order … . In any event, the nursing home’s claim that its failure to appear or answer the complaint was caused by an internal mishandling of the pleadings was unsubstantiated and insufficient to constitute a reasonable excuse for its default … . Hairston v Marcus Garvey Residential Rehab Pavilion, Inc., 2018 NY Slip Op 05021, Second Dept 7-5-18

​CIVIL PROCEDURE (DEFAULT JUDGMENT, MOTION TO VACATE DEFAULT JUDGMENT MORE THAN A YEAR AFTER THE JUDGMENT WAS ENTERED SHOULD NOT HAVE BEEN GRANTED, ALTHOUGH THE COURT HAD THE POWER TO VACATE THE JUDGMENT IN THE INTEREST OF JUSTICE, DEFENDANT DID NOT OFFER A REASONABLE EXCUSE (SECOND DEPT))/CPLR 5015 (DEFAULT JUDGMENT, MOTION TO VACATE DEFAULT JUDGMENT MORE THAN A YEAR AFTER THE JUDGMENT WAS ENTERED SHOULD NOT HAVE BEEN GRANTED, ALTHOUGH THE COURT HAD THE POWER TO VACATE THE JUDGMENT IN THE INTEREST OF JUSTICE, DEFENDANT DID NOT OFFER A REASONABLE EXCUSE (SECOND DEPT)).DEFAULT JUDGMENT ( MOTION TO VACATE DEFAULT JUDGMENT MORE THAN A YEAR AFTER THE JUDGMENT WAS ENTERED SHOULD NOT HAVE BEEN GRANTED, ALTHOUGH THE COURT HAD THE POWER TO VACATE THE JUDGMENT IN THE INTEREST OF JUSTICE, DEFENDANT DID NOT OFFER A REASONABLE EXCUSE (SECOND DEPT))

July 5, 2018
Tags: Second Department
Share this entry
  • Share on WhatsApp
https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png 0 0 Bruce Freeman https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png Bruce Freeman2018-07-05 09:18:452020-01-26 17:47:55MOTION TO VACATE DEFAULT JUDGMENT MORE THAN A YEAR AFTER THE JUDGMENT WAS ENTERED SHOULD NOT HAVE BEEN GRANTED, ALTHOUGH THE COURT HAD THE POWER TO VACATE THE JUDGMENT IN THE INTEREST OF JUSTICE, DEFENDANT DID NOT OFFER A REASONABLE EXCUSE (SECOND DEPT).
You might also like
A PLAINTIFF BRINGING A SUMMARY JUDGMENT MOTION MUST ADDRESS AFFIRMATIVE DEFENSES RAISED IN THE ANSWER; HERE IN THIS TRAFFIC ACCIDENT CASE THE GRAVES AMENDMENT, WHICH PROVIDES THAT THE OWNER OF A LEASED CAR IS NOT LIABLE FOR THE NEGLIGENCE OF THE DRIVER, WAS RAISED AS AN AFFIRMATIVE DEFENSE; BECAUSE PLAINTIFF DID NOT ADDRESS THAT ISSUE IN THE SUMMARY JUDGMENT MOTION, THE MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT).
BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW 1304, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
BECAUSE THE COURT DID NOT IMPOSE CONDITIONS ON THE PLEAS AND SENTENCING COMMITMENTS, THE SENTENCE SHOULD NOT HAVE BEEN ENHANCED BASED ON THE PURPORTED VIOLATIONS OF CERTAIN CONDITIONS, INCLUDING THE DEFENDANT’S FAILURE TO APPEAR AT SENTENCING, ALTHOUGH THE ISSUE WAS NOT PRESERVED, THE APPELLATE COURT CONSIDERED IT IN THE INTEREST OF JUSTICE (SECOND DEPT).
NEGLIGENCE AND NEGLIGENT SUPERVISION CAUSES OF ACTION AGAINST THE SCHOOL DISTRICT BROUGHT BY A STUDENT WITH SPECIAL NEEDS WHO LEFT SCHOOL AND ATTEMPTED SUICIDE ARE NOT SUBJECT TO THE EXHAUSTION OF REMEDIES REQUIREMENTS OF THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT (IDEA) (SECOND DEPT).
Defendant Convicted of Violating an Unconstitutional Statute Has Committed No Crime
PETITIONER’S WAIVER OF HER RIGHT TO COUNSEL IN THIS FAMILY COURT ACT ARTICLE 8 PROCEEDING WAS NOT DEMONSTRATED TO HAVE BEEN VOLUNTARY; THE COURT SHOULD HAVE HELD A HEARING ON WHETHER THE RESPONDENT AND PETITIONER HAD BEEN IN AN INTIMATE RELATIONSHIP (THEREBY AFFORDING THE COURT SUBJECT MATTER JURISDICTION) (SECOND DEPT).
A FAMILIAL RELATIONSHIP BETWEEN THE SEX OFFENDER AND THE VICTIM (HERE DEFENDANT’S YOUNG STEPDAUGHTER) DOES NOT INCREASE THE RISK TO THE PUBLIC AND THEREFORE CANNOT, STANDING ALONE, BE THE BASIS FOR AN UPWARD DEPARTURE FROM THE RISK ASSESSMENT GUIDELINES (SECOND DEPT). ​
LABOR LAW 200 CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, QUESTION OF FACT WHETHER DEFENDANT EXERCISED SUFFICIENT CONTROL OVER THE MEANS AND METHODS OF PLAINTIFF’S WORK (SECOND DEPT).

Categories

  • Abuse of Process
  • Account Stated
  • Accountant Malpractice
  • Administrative Law
  • Agency
  • Animal Law
  • Appeals
  • Arbitration
  • Architectural Malpractice
  • Associations
  • Attorneys
  • Banking Law
  • Bankruptcy
  • Battery
  • Chiropractor Malpractice
  • Civil Commitment
  • Civil Conspiracy
  • Civil Forfeiture
  • Civil Procedure
  • Civil Rights Law
  • Condominiums
  • Constitutional Law
  • Consumer Law
  • Contempt
  • Contract Law
  • Conversion
  • Cooperatives
  • Copyright
  • Corporation Law
  • Correction Law
  • Court of Claims
  • Criminal Law
  • Debtor-Creditor
  • Defamation
  • Dental Malpractice
  • Disciplinary Hearings (Inmates)
  • Education-School Law
  • Election Law
  • Eminent Domain
  • Employment Law
  • Engineering Malpractice
  • Environmental Law
  • Evidence
  • Fair Credit Reporting Act
  • Fair Housing Act
  • Fair Housing Amendments Act
  • False Arrest
  • False Claims Act
  • False Imprisonment
  • Family Law
  • Federal Employers' Liability Act (FELA)
  • Fiduciary Duty
  • Foreclosure
  • Fraud
  • Freedom of Information Law (FOIL)
  • Human Rights Law
  • Immigration Law
  • Immunity
  • Indian Law
  • Insurance Law
  • Intellectual Property
  • Intentional Infliction of Emotional Distress
  • Involuntary Medical Treatment and Feeding (Inmates)
  • Judges
  • Labor Law
  • Labor Law-Construction Law
  • Land Use
  • Landlord-Tenant
  • Legal Malpractice
  • Lien Law
  • Limited Liability Company Law
  • Longshoreman's and Harbor Worker's Compensation Act
  • Malicious Prosecution
  • Maritime Law
  • Medicaid
  • Medical Malpractice
  • Mental Hygiene Law
  • Military Law
  • Money Had and Received
  • Municipal Law
  • Navigation Law
  • Negligence
  • Negligent Infliction of Emotional Distress
  • Negligent Misrepresentation
  • Notarial Misconduct
  • Nuisance
  • Partnership Law
  • Personal Property
  • Pharmacist Malpractice
  • Physician Patient Confidentiality
  • Pistol Permits
  • Prima Facie Tort
  • Private Nuisance
  • Privilege
  • Products Liability
  • Public Authorities Law
  • Public Corporations
  • Public Health Law
  • Public Nuisance
  • Real Estate
  • Real Property Actions and Proceedings Law (RPAPL)
  • Real Property Law
  • Real Property Tax Law
  • Religion
  • Replevin
  • Retirement and Social Security Law
  • Securities
  • Sepulcher
  • Sex Offender Registration Act (SORA)
  • Social Services Law
  • Statutes
  • Tax Law
  • Tenant Harassment
  • Tortious Interference with Contract
  • Tortious Interference with Employment
  • Tortious Interference with Prospective Business Relations
  • Tortious Interference With Prospective Economic Advantage
  • Toxic Torts
  • Trade Secrets
  • Trademarks
  • Trespass
  • Trusts and Estates
  • Unemployment Insurance
  • Unfair Competition
  • Uniform Commercial Code
  • Usury
  • Utilities
  • Vehicle and Traffic Law
  • Victims of Gender-Motivated Violence Protection Law (VGM)
  • Water Law
  • Workers' Compensation
  • Zoning

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

Copyright © 2023 New York Appellate Digest, LLC
Site by CurlyHost | Privacy Policy

SEX OFFENDER MANAGEMENT PROCEEDING IN THIS HIGH PROFILE CASE SHOULD BE CLOSED... QUESTION OF FACT WHETHER OPERATOR OF A SKATING RINK PROVIDED PROPER SUPERVISION...
Scroll to top