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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))

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