You are here: / / MOTION TO VACATE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED, PLAINTIFF’S...

MOTION TO VACATE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED, PLAINTIFF’S ATTORNEY’S ILLNESS WAS A REASONABLE EXCUSE FOR FAILURE TO APPEAR AT ORAL ARGUMENT, MERITORIOUS ACTION DEMONSTRATED, FIRST MOTION DENIED WITHOUT PREJUDICE, SECOND MOTION ON THE SAME GROUNDS WAS NOT, THEREFORE, PRECLUDED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the plaintiff’s motion to vacate a default judgment entered when plaintiff did not appear at the argument on defendant’s motion to dismiss should have been granted. Plaintiff’s attorney’s illness was a reasonable excuse. The court noted that, although only one motion to vacate a default judgment is usually allowed, because Supreme Court denied the first motion “without prejudice” the second motion on the same grounds was not precluded:

… [T]he plaintiff’s excuse that its attorney failed to appear at oral argument due to illness, which excuse was corroborated by medical documentation, was reasonable under the circumstances presented … .. In addition, the plaintiff demonstrated a potentially meritorious opposition to [defendant’s] motion … .

A party ordinarily is precluded from making a second motion to vacate a default on the same ground raised in a prior motion to vacate the default … . However, because the Supreme Court denied the plaintiff’s first motion to vacate “without prejudice,” the plaintiff was not precluded from making a second motion to vacate its default on the same grounds raised in its prior motion. World O World Corp. v Anoufrieva, 2018 NY Slip Op 05075, Second Dept 7-5-18

CIVIL PROCEDURE (MOTION TO VACATE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED, PLAINTIFF’S ATTORNEY’S ILLNESS WAS A REASONABLE EXCUSE FOR FAILURE TO APPEAR AT ORAL ARGUMENT, MERITORIOUS ACTION DEMONSTRATED, FIRST MOTION DENIED WITHOUT PREJUDICE, SECOND MOTION ON THE SAME GROUNDS WAS NOT, THEREFORE, PRECLUDED (SECOND DEPT))/CPLR 5015  (MOTION TO VACATE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED, PLAINTIFF’S ATTORNEY’S ILLNESS WAS A REASONABLE EXCUSE FOR FAILURE TO APPEAR AT ORAL ARGUMENT, MERITORIOUS ACTION DEMONSTRATED, FIRST MOTION DENIED WITHOUT PREJUDICE, SECOND MOTION ON THE SAME GROUNDS WAS NOT, THEREFORE, PRECLUDED (SECOND DEPT))/DEFAULT  (MOTION TO VACATE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED, PLAINTIFF’S ATTORNEY’S ILLNESS WAS A REASONABLE EXCUSE FOR FAILURE TO APPEAR AT ORAL ARGUMENT, MERITORIOUS ACTION DEMONSTRATED, FIRST MOTION DENIED WITHOUT PREJUDICE, SECOND MOTION ON THE SAME GROUNDS WAS NOT, THEREFORE, PRECLUDED (SECOND DEPT))/WITHOUT PREJUDICE (CIVIL PROCEDURE, MOTION TO VACATE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED, PLAINTIFF’S ATTORNEY’S ILLNESS WAS A REASONABLE EXCUSE FOR FAILURE TO APPEAR AT ORAL ARGUMENT, MERITORIOUS ACTION DEMONSTRATED, FIRST MOTION DENIED WITHOUT PREJUDICE, SECOND MOTION ON THE SAME GROUNDS WAS NOT, THEREFORE, PRECLUDED (SECOND DEPT))

You might also like
DAMAGES FOR FRAUD SHOULD HAVE BEEN BASED UPON OUT OF POCKET LOSS, NOT PROFITS THAT WOULD HAVE BEEN EARNED ABSENT THE FRAUD, EVEN THOUGH RESPONDENT WAS ENTITLED TO MORE DAMAGES UNDER THE OUT OF POCKET RULE, NO RELIEF CAN BE AFFORDED TO THE NONAPPEALING PARTY (SECOND DEPT).
PLAINTIFF ALLEGED ASSAULT AND BATTERY BY POLICE OFFICERS; THE NEGLIGENCE CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE ASSAULT AND BATTERY IS INTENTIONAL, NOT NEGLIGENT, CONDUCT; THE IMMUNITY AFFORDED POLICE OFFICERS RE: ASSAULT AND BATTERY EXTENDS ONLY TO “OBJECTIVELY REASONABLE” CONDUCT; THERE WERE QUESTIONS OF FACT ABOUT WHETHER THE POLICE CONDUCT WAS OBJECTIVELY REASONABLE (SECOND DEPT).
REQUIREMENT THAT COVERAGE CANNOT BE DENIED UNLESS THE GROUND FOR THE DENIAL IS SPECIFIED IN THE DISCLAIMER LETTER APPLIES ONLY TO DEATH AND BODILY INJURY CLAIMS, THE INSURER’S MOTION FOR SUMMARY JUDGMENT BASED ON A VANDALISM EXCLUSION IN THIS PROPERTY DAMAGE CASE SHOULD HAVE BEEN GRANTED.
ALTHOUGH DEFENDANT RAISED A QUESTION OF FACT ABOUT PLAINTIFF’S CONTRIBUTORY NEGLIGENCE IN THIS REAR-END COLLISION CASE, DEFENDANT DID NOT RAISE A QUESTION OF FACT ABOUT HIS OWN LIABILTY; THE JUDGE SHOULD NOT HAVE DEEMED PLAINTIFF’S SUMMARY JUDGMENT MOTION PREMATURE (SECOND DEPT).
DEFENDANT SHOULD HAVE BEEN AFFORDED THE OPPORTUNITY TO CURE A DEFAULT IN MONTHLY PAYMENTS ON A LOAN BEFORE PLAINTIFF SOUGHT TO ENFORCE THE TERMS OF THE STIPULATION OF SETTLEMENT, WHICH WOULD RESULT IN DEFENDANT OWING MORE THAN TWICE WHAT REMAINED TO BE PAID (SECOND DEPT). ​
A VIOLATION OF THE RIGHT OF PRIVACY CAUSE OF ACTION ALLEGING USE OF A PERSON’S IMAGE IN ADVERTISING IS PURELY STATUTORY (CIVIL RIGHTS LAW 50 AND 51); THERE IS NO COMMON-LAW RIGHT OF PUBLICITY IN NEW YORK (SECOND DEPT).
No Need for Proof of Agent’s Authority—Five-Day Notice Demanding Rent Valid
THE COMPOSITE LIEN ENCOMPASSING SEVERAL PARCELS OF PROPERTY WAS NOT INVALID ON ITS FACE BECAUSE IT WAS NOT SHOWN INDIVIDUAL PROPERTY OWNERS HIRED THE RESPONDENT IN SEPARATE TRANSACTIONS; THE LIEN SHOULD NOT HAVE BEEN SUMMARILY DISCHARGED ON THE GROUND THE AMOUNT WAS WILFULLY EXAGGERATED, A FINDING WHICH CAN ONLY BE MADE IN A FORECLOSURE PROCEEDING (SECOND DEPT).

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

ALTHOUGH DEFENDANT HOMEOWNER MAY HAVE REMOVED ICE AND SNOW FROM THE SIDEWALK,... DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO MOVE TO DISMISS THE ACCUSATORY INSTRUMENTS...