You are here: / / DELIBERATE ACTS BY DEFENDANT’S ATTORNEY RESULTED IN THE DEFAULT,...
,

DELIBERATE ACTS BY DEFENDANT’S ATTORNEY RESULTED IN THE DEFAULT, DEFENDANT’S MOTION TO VACATE THE DEFAULT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s attorney’s deliberate acts required denial of defendant’s motion to vacate the default:

The affirmations of the defendant’s attorney reveal that he made a conscious decision not to submit any papers in opposition to the plaintiff’s motion even though the Supreme Court gave him ample opportunity to do so. In addition, defense counsel waited until the plaintiff served a proposed default order, more than four months after the court declared the defendant to be in default, before serving the defendant’s motion to vacate. Under these circumstances, the defendant’s failure to oppose the plaintiff’s motion was willful … .

The defendant claims that her default was caused by law office failure based on defense counsel’s statement in his affirmation that his “office will take full responsibility.” At most, defense counsel’s advice, and the defendant’s decision to follow it, constituted a misguided strategy, not law office failure … . Thus, the defendant failed to establish a reasonable excuse for her default … . Bove v Bove, 2019 NY Slip Op 01555, Second Dept 3-6-19

 

​

You might also like
PLAINTIFF BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
Defendant’s Fourth Amendment Rights Violated When Officer Opened an Envelope Containing Defendant’s Personal Belongings at the Hospital Where Defendant Was Being Treated—The Fact that the Officer Thought Defendant Was a Crime Victim at the Time Does Not Matter—The Personal Belongings, Which Included Evidence of a Robbery, Should Have Been Suppressed
DEFENDANT SOLE SHAREHOLDER OF DEFENDANT CORPORATION WAS NOT ENTITLED TO SUMMARY JUDGMENT ON THE ACTION AGAINST HIM PREMISED UPON PIERCING THE CORPORATE VEIL, THERE WERE QUESTIONS OF FACT WHETHER THE WARRANTY PROVISIONS OF THE CONTRACT WERE VIOLATED AND WHETHER DEFENDANT CORPORATION WAS STRIPPED OF ASSETS SUCH THAT IT COULD NOT MEET ITS CONTRACTUAL OBLIGATIONS (SECOND DEPT).
PLAINTIFF DID NOT SUBMIT PROOF IT HAD THE FINANCIAL ABILITY TO CLOSE ON THE PURCHASE OF REAL PROPERTY, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON ITS ACTION FOR SPECIFIC PERFORMANCE OF THE REAL ESTATE PURCHASE AGREEMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
FAILURE TO COMPLY WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 CAN BE RAISED AT ANY TIME; HERE IT WAS RAISED IN OPPOSITION TO THE MOTION TO CONFIRM THE REFEREE’S REPORT; THE PROOF OF COMPLIANCE WAS INSUFFICIENT (SECOND DEPT).
ALTHOUGH THE COMPLAINANT WAS USING ONLY HIS FISTS FIGHTING THE MUCH SMALLER DEFENDANT, THE DEFENDANT WAS ENTITLED TO THE DEADLY-FORCE-JUSTIFICATION-DEFENSE JURY INSTRUCTION (SECOND DEPT).
DEFENDANT HAD PLED GUILTY IN ANOTHER COUNTY TO POSSESSION OF THE SAME WEAPON USED IN THE INSTANT ROBBERY, CONVICTION VIOLATED THE PROTECTION AGAINST DOUBLE JEOPARDY, EVIDENCE OF THE PRIOR CONVICTION PROPERLY ADMITTED UNDER MOLINEUX (SECOND DEPT).
Unwed Birth Father’s Consent for Adoption Properly Required

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

DEFENDANTS DID NOT SUBMIT EVIDENCE SHOWING WHEN THE SIDEWALK WAS LAST INSPECTED... DEFENDANTS’ PROOF DEMONSTRATED THE SNOW STORM WAS OVER 12 HOURS BEFORE...