WHERE DEFENDANT PRESENTS EVIDENCE HE DID NOT RECEIVE NOTICE OF THE COURT CONFERENCES, HIS MOTION TO VACATE HIS DEFAULT MUST BE GRANTED AS A MATTER OF LAW (SECOND DEPT).

The Second Department determined defendant’s motion to vacate his default should have been granted as a matter of law. Defendant submitted an affidavit stating that he had never been notified of the court conferences and the plaintiff did not offer any contrary evidence:

Generally, to vacate an order striking a defendant’s answer based upon his or her default in appearing for a scheduled conference before the court, the defendant is required to demonstrate both a reasonable excuse for his or her failure to appear and a potentially meritorious defense … . However, “[i]n the absence of actual notice of [a] conference date, [a] defendant’s failure to appear at that conference [cannot] qualify as a failure to perform a legal duty, the very definition of a default'” … . In that situation, the defendant’s default is considered a nullity and vacatur of the default “is required as a matter of law and due process, and no showing of a potentially meritorious defense is required” … . Notaro v Performance Team, 2018 NY Slip Op 03692, Second Dept 5-23-18

​CIVIL PROCEDURE (DEFAULT, MOTION TO VACATE, WHERE DEFENDANT PRESENTS EVIDENCE HE DID NOT RECEIVE NOTICE OF THE COURT CONFERENCES, HIS MOTION TO VACATE HIS DEFAULT MUST BE GRANTED AS A MATTER OF LAW (SECOND DEPT))/DEFAULT, MOTION TO VACATE (WHERE DEFENDANT PRESENTS EVIDENCE HE DID NOT RECEIVE NOTICE OF THE COURT CONFERENCES, HIS MOTION TO VACATE HIS DEFAULT MUST BE GRANTED AS A MATTER OF LAW (SECOND DEPT))/COURT CONFERENCES (DEFAULT, MOTION TO VACATE, WHERE DEFENDANT PRESENTS EVIDENCE HE DID NOT RECEIVE NOTICE OF THE COURT CONFERENCES, HIS MOTION TO VACATE HIS DEFAULT MUST BE GRANTED AS A MATTER OF LAW (SECOND DEPT))