theCPLRblog

5015(a)(3); 317; 2005; Renewal Judgment

CPLR R. 5015 Relief from judgment or order
(a) On motion
(1) excusable default...
(2) newly-discovered evidence...
(3) fraud, misrepresentation, or other misconduct of an adverse party
(4) lack of jurisdiction to render the judgment or order
(5) reversal, modification or vacatur of a prior judgment or order upon which it is based

CPLR § 317

CPLR § 2005

Matter of Travelers Ins. Co. v Rogers, 2011 NY Slip Op 03729 (App. DIv., 1st 2011)

Supreme Court abused its discretion in refusing to vacate its prior order granting a permanent stay of arbitration of respondents Rogers and Westwater's uninsured motorist claim, which was granted upon their failure to appear at the petition hearing or to submit papers in opposition. Vacatur should have been granted on the ground of "fraud, misrepresentation, or other misconduct of an adverse party" (CPLR 5015[a][3]). A review of the record in this case reveals several potential instances of intentional and material misrepresentations of fact by petitioner, which, at least in part, may have formed the basis of Supreme Court's decision and order to permanently stay arbitration. Hence, it was an abuse of discretion to conclude that the failure to proffer a reasonable excuse precluded relief pursuant to CPLR 5015(a)(3), since that section does not require such a showing (cf. CPLR 5015 [a] [1]; see Shouse v Lyons, 4 AD3d 821, 822 [2004]). To the extent that some of respondents' allegations of fraud, misrepresentation or other misconduct are not conclusively established by the evidence in the record, they present issues of fact which should not be determined without holding a hearing (Readick v Readick, 80 AD3d 512, 513 [2011]; see also Tonawonda Sch. Emples. Fed. Credit Union v Zack, 242 AD2d 894, 894-95 [1997]).

Olivaria v Lin & Son Realty, Corp., 2011 NY Slip Op 03655 (App. Div., 1st 2011)

Relief under CPLR 5015(a)(1) was properly denied. The record shows that Lin did not receive process because it failed to maintain a current address on file with the Secretary of State for 18 years (see On Assignment v Medasorb Tech., LLC, 50 AD3d 342 [2008]; Business Corporation Law § 408).

The Supreme Court should not have concluded, however, that Lin's request for relief under CPLR 317 was untimely. The statute permits a defendant who has been "served with a summons other than by personal delivery" and has not appeared to defend the action upon a finding of the court that the defendant "did not personally receive notice of the summons in time to defend and has a meritorious defense" (CPLR 317). A defendant so served may be allowed to defend the action "within one year after [such defendant] obtains knowledge of entry of the judgment, but in no event more than five years after such entry . . ." (id.)^[FN1]. In making a CPLR 317 motion, a defendant does not have to come forward with a reasonable excuse for its default (see Pena v Mittleman, 179 AD2d 607, 609 [1992]).

By regarding the February 4, 2003 order as an entered judgment, the court reached the conclusion that the statutory five-year period had expired. This was error. "A judgment is entered when, after it has been signed by the clerk, it is filed by him" (CPLR 5016[a]). Unlike the 2003 order, the 2009 judgment was duly signed and entered by the County Clerk. Accordingly, the motion was timely because August 20, 2009 is the date of entry from which Lin's time is to be measured.

The lease between Lin and the injured plaintiff's employer provided for heating through perimeter ducts and made no mention of portable heaters. Lin's president states by affidavit that the company had no knowledge of the tenant's use of portable heaters. Thus, Lin has demonstrated, prima facie, that it has a meritorious defense to plaintiffs' claims. Moreover, it does not appear that Lin deliberately attempted to avoid notice of this action (see e.g. Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138, 143 [1986]). In the exercise of discretion, we therefore grant Lin's motion to vacate the default judgment pursuant to CPLR 317.

Casali v Cyran, 2011 NY Slip Op 03791 (App. Div., 2nd 2011)

To vacate his default, the plaintiff was required to demonstrate a reasonable excuse for the default and potentially meritorious opposition to the motion (see CPLR 5015[a]; Legaretta v Ekhstor, 74 AD3d 899; Rivera v Komor, 69 AD3d 833; Nowell v NYU Med. Ctr., 55 AD3d 573). The plaintiff's excuse for failing to oppose the motion of the defendant Daniel J. Cyran for summary judgment dismissing the compaint insofar as asserted against Cyran can only be classified as law office failure. Although the Supreme Court has the discretion to excuse a default resulting from law office failure (see CPLR 2005), here, the plaintiff's attorney, in his affirmation, admitted that there was "no excuse, reasonable or otherwise." Additionally, the plaintiff failed to establish that he had potentially meritorious opposition to the motion (see Bollino v Hitzig, 34 AD3d 711). Accordingly, the Supreme Court properly denied the plaintiff's motion to vacate the prior order granting Cyran's motion for summary judgment dismissing the complaint insofar as asserted against Cyran.

n Tend Masoers Dist. Council Welfare Fund v Diamond Constr. & Maintenance, Inc., 2011 NY Slip Op 03815 (App. Div., 2nd 2011)

In an action for leave to enter a renewal judgment pursuant to CPLR 5014, nonparty Deutsche Bank National Trust Company appeals from an order of the Supreme Court, Richmond County (Minardo, J.), dated July 22, 2010, which denied its motion pursuant to CPLR 5015(a)(4) to vacate a renewal judgment of the same court dated January 11, 2010 on the ground that the Supreme Court lacked jurisdiction to issue the renewal judgment because Deutsche Bank National Trust Company was not joined as a necessary party.
ORDERED that the order is affirmed, with costs.
"Persons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants" (CPLR 1001[a]). This statute "limit[s] the scope of indispensable parties to those cases and only those cases where the determination of the court will adversely affect the rights of nonparties" (Matter of Castaways Motel v Schuyler, 24 NY2d 120, 125; see Spector v Toys "R" Us, Inc., 12 AD3d 358, 359).
Here, the Supreme Court properly found that nonparty Deutsche Bank National Trust Company did not need to be joined in the instant action in order to accord complete relief to the parties, and that Deutsche Bank National Trust Company was not inequitably affected by the renewal judgment.
In an action for leave to enter a renewal judgment pursuant to CPLR 5014, nonparty Deutsche Bank National Trust Company appeals from an order of the Supreme Court, Richmond County (Minardo, J.), dated July 22, 2010, which denied its motion pursuant to CPLR 5015(a)(4) to vacate a renewal judgment of the same court dated January 11, 2010 on the ground that the Supreme Court lacked jurisdiction to issue the renewal judgment because Deutsche Bank National Trust Company was not joined as a necessary party.

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One day late CPLR § 3012; § 2005

 CPLR § 3012 Service of pleadings and demand for complaint
(d) Extension of time to appear or plead

CPLR § 2005 Excusable delay or default

Dinstber v Allstate Ins. Co., 2010 NY Slip Op 06200 (App. Div., 3rd 2010)

Plaintiff served a summons and verified complaint on the Insurance Department on July 29, 2008 pursuant to Insurance Law § 1212. However, defendant allegedly did not receive them until August 21, 2008. Although defendant served an answer on August 28, 2008, plaintiff rejected it because it was not verified. On September 4, 2008 — one day after receiving plaintiff's letter of rejection — defendant served a second answer, virtually identical to the first but properly verified, which was rejected by plaintiff as untimely. Defendant then promptly moved to extend its time to answer and to compel plaintiff to accept late service thereof. Plaintiff cross-moved for a default judgment. Supreme Court granted defendant's motion — giving defendant 30 days to file, serve and file proof of service of the second answer — and denied plaintiff's cross motion. Plaintiff now appeals and we affirm. [*2]

Pursuant to CPLR 3012 (d), Supreme Court has the discretion to permit late service of an answer upon the demonstration of a reasonable excuse for the delay or default (see Rickert v Chestara, 56 AD3d 941, 942 [2008]; Watson v Pollacchi, 32 AD3d 565, 565 [2006]). "To that end, '[w]hether there is a reasonable excuse for a default is a discretionary, sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits'" (Rickert v Chestara, 56 AD3d at 942, quoting Harcztark v Drive Variety, Inc., 21 AD3d 876, 876-877 [2005]; see Watson v Pollacchi, 32 AD3d at 565). Also relevant is whether the untimely answer sets forth a meritorious defense to plaintiff's complaint (see Rickert v Chestara, 56 AD3d at 942; Watson v Pollacchi, 32 AD3d at 565).

Here, contrary to plaintiff's assertion, we find that defendant proffered both a reasonable excuse for its delay in serving a verified answer and a sufficiently meritorious defense to the claims. Defendant proffered several reasons for its delay. First, defendant submitted evidence that it did not actually receive the complaint from the Insurance Department until one week before the time to answer expired and that an incorrect date of service on the transmittal sheet caused further delay in the complaint being referred to counsel. After unsuccessfully attempting to contact plaintiff to obtain an extension of time to serve an answer, defendant effected such service one day after counsel's receipt of the complaint. Secondly, defendant alleged law office failure in neglecting to include the verification with the initial answer, which was timely served. In our view, these circumstances established a reasonable excuse for the default (see CPLR 2005).

We also note that defendant's answer set forth a myriad of defenses including, among others, failure to state a cause of action, failure to comply with the terms and conditions of the policy, fraud or perjury on plaintiff's part and that the claim is time-barred. In addition, defendant's attorney provided Supreme Court with the original denial of coverage letter, which set forth in detail the reasons why plaintiff's claim for benefits was denied. Such assertions set forth a sufficiently meritorious defense for purposes of defendant's motion (see Chase Manhattan Automotive Fin. Corp. v Allstate Ins. Co., 272 AD2d 772, 774-775 [2000]).

In view of defendant's reasonable excuse for the default, the minimal delay, defendant's expeditious motion to compel acceptance of the answer, the absence of proof that the default was willful or any indication that plaintiff was prejudiced by the delay, and the existence of an arguably meritorious defense, we conclude that Supreme Court's decision to grant defendant's motion to extend the time to answer and to compel plaintiff to accept service was a proper exercise of its discretion (see Rickert v Chestara, 56 AD3d at 942; Acker v VanEpps, 45 AD3d 1104, 1105, 1106 [2007]).

The bold is mine.

Stipulations, Orders, and Defaults: CPLR R. 5015; CPLR § 2005; CPLR R. 3216; CPLR § 2004

CPLR R. 5015 Relief from judgment or order

CPLR § 2005 Excusable delay or default

Davidson v Valentin, 2009 NY Slip Op 06500 (App. Div., 2nd, 2009)

On October 26, 2007, a stipulation was "so-ordered," in which the parties consented to the entry of a judgment in favor of the plaintiffs on their first cause of action, inter alia, to direct the defendants to repair or replace a retaining wall on the defendants' property in compliance with the terms of an access agreement executed by the parties on the same date. The stipulation provided that if the defendants failed to comply with the terms of the judgment, the parties would place the remaining causes of action on the trial calendar. After the defendants failed to timely comply with the terms of the judgment, the plaintiffs placed the remaining causes of action on the trial calendar. Thereafter, the defendants obtained multiple adjournments of the trial date in an effort to comply with the terms of the access agreement. When the defendants' attorney failed to appear for trial on the third adjourned date of January 28, 2008, the court held an inquest on the issue of damages and entered a judgment in favor of the plaintiffs on February 28, 2008. On April 23, 2008, the defendants moved to vacate the judgment.

To vacate their default in appearing at the trial, the defendants were required to demonstrate both a reasonable excuse for the default and a meritorious defense to the action (see CPLR 5015[a][1]; Zaidi v New York Bldg. Contrs., Ltd., 61 AD3d 747; Vasquez v New York City Hous. Auth., 51 AD3d 781, 782; Conserve Elec., Inc. v Tulger Contr. Corp., 36 AD3d 747). Although the court may, in its discretion, accept law office failure as a reasonable excuse (see CPLR 2005; Putney v Pearlman, 203 AD2d 333), "'a pattern of willful default and neglect' should not be excused" (Roussodimou v Zafiriadis, 238 AD2d 568, 569, quoting Gannon v Johnson Scale Co., 189 AD2d 1052, 1052). The statements by the defendants' attorney regarding his personal problems did [*2]not adequately explain the defendants' failure to comply with the time and terms of the court-ordered stipulation, judgment, and access agreement dated October 26, 2007, and to comply with those terms during the subsequent extensions of those deadlines, and defense counsel's failure to appear on the adjourned trial date even though he knew his attempts to further adjourn the trial had been unsuccessful (see Joseph v GMAC Leasing Corp., 44 AD3d 905; Wechsler v First Unum Life Ins. Co., 295 AD2d 340; Foster v Gherardi, 201 AD2d 701). Furthermore, the defendants failed to demonstrate that they have a meritorious defense (see Buchanan v Cardozo, 24 AD2d 620, 621, affd 16 NY2d 1029). Accordingly, the defendants' motion was properly denied. 

The bold is mine.

CPLR R. 3216 Want of prosecution

(b) No dismissal shall be directed under any portion of subdivision (a) of this rule and no court initiative shall be taken or motion made thereunder unless the following conditions precedent have been complied with:

(3) The court or party seeking such relief, as the case may be, shall have served a written demand by registered or certified mail requiring the party against whom such relief is sought to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of such demand, and further stating that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him for unreasonably neglecting to proceed.

CPLR § 2004 Extensions of time generally

Davis v Cardiovascular Consultants of Long Is., P.C., 2009 NY Slip Op 06501 (App. Div., 2nd, 2009)

An order entered November 7, 2007, which warned the plaintiff that the failure to serve and file a note of issue would result in dismissal of the action, had the same effect as a valid 90-day notice pursuant to CPLR 3216 (see Huger v Cushman & Wakefield, Inc., 58 AD3d 682; Benitez v Mutual of Am. Life Ins. Co., 24 AD3d 708; Giannoccoli v One Cent Park W. Assocs., 15 AD3d 348; Betty v City of New York, 12 AD3d 472). Having received a 90-day notice, the plaintiff was required either to file a timely note of issue or to move, before the default date, for an extension of time pursuant to CPLR 2004 (see Benitez v Mutual of Am. Life Ins. Co., 24 AD3d 708; Bokhari v Home Depot U.S.A., 4 AD3d 381; McKinney v Corby, 295 AD2d 580, 581). The plaintiff did neither, and the action was subsequently dismissed pursuant to CPLR 3216.

To vacate the dismissal of an action pursuant to CPLR 3216, a plaintiff must demonstrate both a reasonable excuse for the default in complying with the 90-day notice and a meritorious cause of action (see CPLR 3216[e]; Felix v County of Nassau, 52 AD3d 653; Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d 783). Here, the plaintiff failed to submit any expert medical opinion evidence to demonstrate the merit of his medical malpractice action (see Mosberg v Elahi, 80 NY2d 941, 942; Fiore v Galang, 64 NY2d 999, 1000-1001; Salch v Paratore, 60 NY2d 851, 852; Picot v City of New York, 50 AD3d 757; Burke v Klein, 269 AD2d 348, 348-349; Abelard [*2]v Interfaith Med. Ctr., 202 AD2d 615, 616; Feinblum v Dybner, 197 AD2d 560). Accordingly, that branch of his motion which was, in effect, to vacate the dismissal of the action pursuant to CPLR 3216 should have been denied.

Strange.  Consider CPLR R. 3216(b)(3).  Specifically, the "registered or certified" mail part.

Again, the bold is mine.

CPLR R. 5015 Plaintiff not required to reject late answer where it moved to enter a default instead

CPLR R. 5015 Relief from judgment or order

CPLR R. 2101 Form of papers
(f) Defects in form; waiver

CPLR § 3012 Service of pleadings and demand for complaint
(d) Extension of time to appear or plead

CPLR § 2005 Excusable delay or default

J.O. Dedicated Med., P.C. v State Farm Mut. Auto. Ins. Co., 2009 NY Slip Op 51089(U) (App. Term, 2nd, 2009)

Defendant's contention that plaintiff should be compelled to accept its answer because plaintiff did not reject the answer within two days of its receipt, as mandated by CPLR 2101 (f), is without merit. Although a plaintiff's retention of an answer without a timely objection constitutes a waiver of objection as to untimeliness, precluding entry of a default judgment (see e.g. AVA Acupuncture P.C. v Lumbermens Mut. Cas. Co., 14 Misc 3d 138[A], 2007 NY Slip Op 50263[U] [App Term, 2d & 11th Jud Dists 2007]), a review of the record in the instant case demonstrates that plaintiff made its application for leave to enter a default judgment long before it was in receipt of the answer. Once plaintiff made said application, it thereby objected to defendant's failure to serve a timely answer, brought that objection to the attention of defendant and the court, and therefore cannot be deemed to have waived any objection to untimeliness (see [*2]Katz v Perl, 22 AD3d 806 [2005]).

We note that a default judgment had already been entered against defendant when it moved to compel the acceptance of its answer or, in the alternative, to extend its time to serve the answer pursuant to CPLR 3012 (d). Accordingly, defendant should have instead moved to vacate the default judgment, pursuant to CPLR 5015 (a). In either situation, however, a defendant is required to establish both a reasonable excuse for the default and a meritorious defense (see Juseinoski v Board of Educ. of the City of New York, 15 AD3d 353 [2005]) and, in the case at bar, defendant failed to do so.

While a court may, in the exercise of its discretion, accept a claim of law office failure as a reasonable excuse (see CPLR 2005), defense counsel was required to "submit supporting facts in evidentiary form sufficient to justify the default" (Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553, 554 [2001]), and include "a detailed explanation of [the] oversights" (Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 433 [2004]). The mere statement in defense counsel's affirmation in support of the motion that his office failed to timely process the summons and complaint "due to clerical inadvertence," and that law office failure was excusable, did not establish a reasonable excuse for the default (see Ave T MPC Corp. v Chubb Indem. Ins. Co., 20 Misc 3d 142[A], 2008 NY Slip Op 51681[U] [App Term, 2d & 11th Jud Dists 2008]).

Because we find that defendant did not establish a reasonable excuse for the default, it is unnecessary for us to address whether defendant demonstrated a meritorious defense.

Leifer v Pilgreen Corp., 2009 NY Slip Op 03872 (App. Div., 2nd, 2009)

It is uncontested that the defendant failed to timely serve its answer. The stipulation extending its time to do so expired in October 2006 and no extension thereof was granted or even sought. Thus, in order to successfully oppose the plaintiffs' motion for leave to enter a default judgment against it, the defendant was required to demonstrate a justifiable excuse for its default and the existence of a meritorious defense (see CPLR 5015[a][1]; Kouzios v Dery, 57 AD3d 949; Mjahdi v Maguire, 21 AD3d 1067, 1068; cf. Giovanelli v Rivera, 23 AD3d 616). The defendant failed to do so.

The defendant's insurance carrier's long delay before defending this action, without more, was insufficient to establish a reasonable excuse for the default (see Martinez v D'Alessandro [*2]Custom Bldrs. & Demolition, Inc., 52 AD3d 786, 787; Segovia v Delcon Constr. Corp., 43 AD3d 1143; Lemberger v Congregation Yetev Lev D'Satmar, Inc., 33 AD3d 671, 672). Additionally, the defendant failed to demonstrate the existence of a meritorious defense. Accordingly, the plaintiffs' motion for leave to enter a default judgment and to set the matter down for an inquest should have been granted and the defendant's cross motion for leave to serve a late answer nunc pro tunc should have been denied (see CPLR 3012[d]).

Furthermore, the court erred in deeming the issue of timeliness of the answer waived by the plaintiffs' withdrawal of their prior motion for a default judgment. After the defendant served a late answer, the plaintiffs promptly moved for the same relief, bringing their objection to the attention of the defendant and the court (see Katz v Perl, 22 AD3d 806, 807).