You are here: / / MOTION TO VACATE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED, PLAINTIFF’S...

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))

You might also like
BANK DID NOT SUBMIT SUFFICIENT EVIDENCE OF ITS STANDING, ITS COMPLIANCE WITH CONDITIONS PRECEDENT IN THE MORTGAGE, OR ITS COMPLIANCE WITH THE NOTICE REQUIREMENTS OF THE RPAPL, THE BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
Installing, Pursuant to a Resolution, a Temporary Barrier to Address Traffic and Speeding Problems Did Not Violate the “Prior Public Use” Doctrine
THE REMAINDER BENEFICIARIES’ ACTION ALLEGING THE EXECUTOR’S VIOLATION OF A STANDSTILL AGREEMENT, WHICH REQUIRED THE EXECUTOR TO KEEP THE FUNDS FROM THE SALE OF THE DECEASED’S BUSINESS IN A SEGREGATED ACCOUNT UNTIL THE DAUGHTERS’ REMAINDER INTERESTS WERE DETERMINED, DID NOT VIOLATE THE IN TERROREM CLAUSE OF THE WILL WHICH PROHIBITED THE DAUGHTERS FROM CONTESTING THE WILL, SURROGATE’S COURT REVERSED (SECOND DEPT).
Children Were Not “Dependent on Court;” They Therefore Did Not Meet Criteria for Statutory Path to Lawful Permanent Residency in US
Plea Colloquy Raised Concerns Requiring Further Inquiry Re: Defendant’s Mental Health
NEGLIGENT HIRING AND RETENTION CAUSE ACTION BASED UPON A JANITOR’S CALLING PLAINTIFF’S DAUGHTER NAMES PROPERLY SURVIVED SUMMARY JUDGMENT, PROOF JANITOR WAS AN INDEPENDENT CONTRACTOR INSUFFICIENT, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, DEFAMATION, AND PRIMA FACIE TORT CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT).
Language of Exclusion from Coverage, Including the Phrase “Arising Out Of” Was Not Ambiguous—Insurer Was Not Obligated to Defend or Indemnify Defendants
AFTER MAKING A FINAL AWARD, THE RABBINICAL COURT EXCEEDED ITS AUTHORITY BY MAKING A SECOND AWARD BASED ON NEW EVIDENCE.

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

ALTHOUGH DEFENDANT HOMEOWNER MAY HAVE REMOVED ICE AND SNOW FROM THE SIDEWALK,... DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO MOVE TO DISMISS THE ACCUSATORY INSTRUMENTS...