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LAW OFFICE FAILURE DEEMED AN ADEQUATE EXCUSE, MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined that law office failure was an adequate excuse and appellants’ motion to vacate a default judgment should have been granted in this foreclosure action:

… [T]he appellants moved, among other things, pursuant to CPLR 2005 and 5015(a) to vacate their default … . …

“A motion to vacate a default is addressed to the sound discretion of the motion court” … . “In making that discretionary determination, the court should consider relevant factors, such as the extent of the delay, prejudice or lack of prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits” … .

Under the circumstances presented here, the appellants set forth a reasonable excuse for their failure to appear at the centralized motion part of the Supreme Court on the return date of the plaintiff’s motion based on evidence of law office failure. In an affirmation, the appellants’ attorney explained that upon receiving the plaintiff’s motion, he directed his office’s legal assistant to note the return date of the motion on the office calendar, but that the return date had not been noted on the calendar. In addition, the appellants demonstrated a potentially meritorious defense based upon the statute of limitations. Bank of N.Y. Mellon v Faragalla, 2019 NY Slip Op 05641, Second Dept 7-17-19

 

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THE SURGICAL PROCEDURE FOR WHICH THERE ALLEGEDLY WAS NO CONSENT WAS NOT DEMONSTRATED... MOTION TO VACATE A DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED, NO EXCUSE...