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JUDGE SHOULD NOT HAVE REFUSED TO SIGN A PROPOSED ORDER TO SHOW CAUSE FOR DEFENDANTS’ MOTION TO VACATE A DEFAULT JUDGMENT IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the order to show cause was proper and the judge should not have refused to sign it. The defendants in this foreclosure action properly sought an order to show cause in their action to vacate the default judgment:

The defendants Jacob Hirsch and Blime Hirsch (hereinafter together the Hirsches) defaulted by failing to appear in this action to foreclose a mortgage on real property they owned. A judgment of foreclosure and sale dated December 12, 2014, was entered in favor of the plaintiff and against, among others, the Hirches. On December 3, 2015, the Hirsches presented a proposed order to show cause to the Supreme Court, seeking to vacate the judgment pursuant to CPLR 5015(a)(1), (3), and (4), to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211(a)(8), to disqualify the plaintiff's counsel based upon an alleged conflict of interest, and to cancel the notice of pendency. The proposed order to show cause also sought a temporary restraining order staying the foreclosure sale of the property scheduled for later that day, December 3, 2015, at 2:30 p.m., pending the hearing and determination of their proposed motion. After oral argument, the court declined to sign the proposed order to show cause, with a handwritten notation that the Hirsches failed to demonstrate a meritorious defense to the action and that the Hirsches failed to submit proof of misconduct by the plaintiff's attorney. …

“The court in a proper case may grant an order to show cause, to be served in lieu of a notice of motion, at a time and in a manner specified therein” (CPLR 2214[d]). Whether the circumstances constitute a “proper case” for the use of an order to show cause instead of a notice of motion is a matter within the discretion of the court to which the proposed order is presented … . Here, under the particular circumstances of this case, this was a proper case for the use of an order to show cause, and the Supreme Court improvidently exercised its discretion in declining to sign the proposed order to show cause … . Gluck v Hirsch, 2018 NY Slip Op 05828, Second Dept 8-22-18

CIVIL PROCEDURE (JUDGE SHOULD NOT HAVE REFUSED TO SIGN A PROPOSED ORDER TO SHOW CAUSE FOR DEFENDANTS' MOTION TO VACATE A DEFAULT JUDGMENT IN THIS FORECLOSURE ACTION (SECOND DEPT))/ORDER TO SHOW CAUSE (JUDGE SHOULD NOT HAVE REFUSED TO SIGN A PROPOSED ORDER TO SHOW CAUSE FOR DEFENDANTS' MOTION TO VACATE A DEFAULT JUDGMENT IN THIS FORECLOSURE ACTION (SECOND DEPT))/FORECLOSURE (CIVIL PROCEDURE, JUDGE SHOULD NOT HAVE REFUSED TO SIGN A PROPOSED ORDER TO SHOW CAUSE FOR DEFENDANTS' MOTION TO VACATE A DEFAULT JUDGMENT IN THIS FORECLOSURE ACTION (SECOND DEPT))/CPLR 2214  (JUDGE SHOULD NOT HAVE REFUSED TO SIGN A PROPOSED ORDER TO SHOW CAUSE FOR DEFENDANTS' MOTION TO VACATE A DEFAULT JUDGMENT IN THIS FORECLOSURE ACTION (SECOND DEPT))

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