Failure to appear may not result in dismissal with prejudice

Farrell Forwarding Co., Inc. v Alison Transp., Inc., 2014 NY Slip Op 05507 (2d Dept. 2014)

“After the plaintiff failed to appear at a court-ordered conference, the defendant moved for leave to enter a default judgment and to dismiss the complaint pursuant to 22 NYCRR 202.27(b). In opposition to the motion, the plaintiff failed to establish either a reasonable excuse for the default or a potentially meritorious cause of action. Accordingly, the motion for leave to enter a default judgment and to dismiss the complaint was properly granted (see Aydiner v Grosfillex, Inc., 111 AD3d 589).

However, the judgment should have dismissed the complaint without prejudice, since dismissal of an action for a default pursuant to 22 NYCRR 202.27 does not constitute a determination on the merits (see Franchise Acquisitions Group Corp. v Jefferson Val. Mall Ltd. Partnership, 73 AD3d 1123; Kalisch v Maple Trade Fin. Corp., 35 AD3d 291).”

This is interesting because the trial court is now without power to dismiss a case with prejudice when a plaintiff (counterclaiming defendant) fails to appear at trial.  Assuming the SOL is 6 years or you are in a fast moving upstate court with a 3 year SOL on a tort case, a dismissal for non-appearance may not be all too bad.

Failure to enter default within one year allows vacatur of default under a Woodson theory

DJS Med. Supplies, Inc. v Infinity Ins. Co., 2013 NY Slip Op 52073(U)(App. Term 2d Dept. 2013)

‘Plaintiff commenced this action in April 2006 to recover assigned first-party no-fault benefits. Defendant defaulted. More than a year later, plaintiff moved for leave to enter a default judgment. By order dated July 13, 2007, the Civil Court granted plaintiff’s motion on defendant’s default.’

“[A]s plaintiff failed to offer any excuse for its delay in moving for leave to enter a default judgment, the dismissal of the complaint was required pursuant to CPLR 3215 (c), and it was improper for the court to have granted plaintiff’s motion.”


While defendant failed to demonstrate that the default judgment should have been vacated pursuant to CPLR 5015 (a) (3), under the circumstances presented, we exercise our inherent discretionary power to vacate judgments in situations that warrant vacatur but were not specifically codified in CPLR 5015 (a).

So Plaintiff was able to enter a default, on notice,  after the one year time period through Defendant defaulting to oppose.  Defendant wakes up, opposes entry of the default judgment, and the court vacates the default under a Woodson catch-all theory.

An intentional default excused based upon court’s inherent power to vacate defaults

Gurin v Pogge, 2013 NY Slip Op 08174 (3d Dept. 2013)

“In November 2011, defendants moved to vacate the default judgment, putting in dispute the contents of the indemnification agreement that Pogge signed. In an affidavit in support of defendants’ motion to vacate, Pogge asserted that he knowingly defaulted because the indemnification agreement he signed did not contain a fourth handwritten provision that would hold him personally responsible for plaintiffs’ losses.’

“Supreme Court declined to vacate the default judgment pursuant to CPLR 5015 (a) (1), finding that defendants did not demonstrate a reasonable excuse for their default. Instead, the court vacated the judgment against Pogge individually “for sufficient reason and in the interests of substantial justice.” Plaintiffs now appeal.”

In order to obtain vacatur of a default judgment under CPLR 5015 (a) (1), a party must demonstrate a reasonable excuse for the default and a meritorious defense (see Eugene DiLorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Wade v Village of Whitehall, 46 AD3d 1302, 1303 [2007]). However, the grounds set forth in CPLR 5015 are not exclusive, and courts retain “inherent discretionary power” to vacate their own judgments “for sufficient reason and in the interests of substantial justice” (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]; Boyd v Town of N. Elba, 28 AD3d 929, 931 [2006], lv dismissed 7 NY3d 783 [2006]; Matter of Culberson, 11 AD3d 859, 861 [2004]). Notably, the decision to vacate “a default judgment lies within the discretion of the trial court . . . [and] should not be disturbed unless it reflects an ‘improvident exercise of discretion'” (Chase Manhattan Automotive Fin. Corp. v Allstate Ins. Co., 272 AD2d 772, 773 [2000], quoting Lucas v United Helpers Cedars Nursing Home, 239 AD2d 853, 853 [1997]).”


Oh ye Third Department, how you live in your own world.

Movant bears burden to show that application to vacate default under 5015(a)(1) was timely made

Taveras v Philibert, 2013 NY Slip Op 04420 (1st Dept. 2013)

“The motion court properly denied plaintiffs’ CPLR 5015(a)(1) motion to vacate the prior order, granted on plaintiffs’ default. Under that statutory provision, a party seeking such relief must move to vacate the order within one year of service of the order with notice of entry (see Caba v Rai, 63 AD3d 578, 580 [1st Dept 2009]). As the movant, it was plaintiffs’ burden to establish their right to the relief, including that their motion was timely made.

The movant must establish that the application was made within the year.  Seems simple enough?

Failure to comply with 3215(f) is not jurisdictional

Manhattan Telecom. Corp. v H & A Locksmith, Inc., 2013 NY Slip Op 03867 (2013)

“On November 5, 2009, Vanunu moved to vacate the judgment, asserting that his default was excusable and that he had meritorious defenses to the action. Supreme Court denied the motion, finding that Vanunu’s delay in defending himself was not excusable. The Appellate Division reversed without reaching the issue of excusable default, holding that because “plaintiff failed to provide . . . evidence that [Vanunu] was personally liable for the stated claims . . . . the default judgment was a nullity” (Manhattan Telecom. Corp. v H & A Locksmith, Inc., 82 AD3d 674 [1st Dept 2011]). The Appellate Division granted leave to appeal, certifying the question of whether its order was properly made. We answer the question in the negative, and reverse.”

“The defect in the default judgment before us is not jurisdictional in this sense. A failure to submit the proof required by CPLR 3215(f) should lead a court to deny an application for a default judgment, but a court that does not comply with this rule has merely committed an error — it has not usurped a power it does not have. The error can be corrected by the means provided by law — i.e., by an application for relief from the judgment pursuant to CPLR 5015. It does not justify treating the judgment as a nullity.”

This will be interesting to watch play out.   Does the failure to comply with CPLR 3215(f) implicate the meritorious defense branch of CPLR 5015(a)(1), provided that a reasonable excuse is established?  This will insulate clerk’s judgments that do not comply 3215(f) where a reasonable excuse is not found on the subsequent 5015(a)(1) motion.


Shell game

City Dental Servs., P.C. v Country Wide Ins. Co.,2013 NY Slip Op 50474(U)(App. Term 2d Dept. 2013)

“In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. When defendant attempted to file opposing papers almost two months after their stipulated due date, the Civil Court (Carolyn E. Wade, J.) rejected defendant’s papers and, by order entered June 11, 2010, granted plaintiff’s motion on default. Thereafter, defendant moved pursuant to CPLR 2221 (d) and (e), for leave to “renew and reargue” its [*2]opposition to plaintiff’s prior motion for summary judgment and, upon renewal and reargument, to deny plaintiff’s motion. Defendant’s motion also sought to vacate the June 11, 2010 order pursuant to CPLR 5015 (a) (1). By order entered April 27, 2011, the Civil Court (Johnny Lee Baynes, J.) denied the branches of defendant’s motion seeking leave to renew and reargue. The order did not address the branch of defendant’s motion seeking to vacate the June 11, 2010 order.

The appeal from so much of the order as denied the branch of defendant’s motion seeking leave to “reargue” must be dismissed, as no appeal lies from an order denying reargument (see Barrafato v Franzitta, 308 AD2d 468 [2003]).

The denial of the branch of defendant’s motion seeking leave to “renew” its “opposition” to plaintiff’s motion for summary judgment was proper since defendant had defaulted in opposing plaintiff’s motion and, thus, defendant’s remedy was to seek to vacate the default order. Finally, the branch of plaintiff’s motion seeking, pursuant to CPLR 5015 (a) (1), to vacate the June 11, 2010 order was not addressed in the order appealed from and, therefore, remains pending and undecided (see Creese v Long Is. Light. Co., 98 AD3d 708, 711 [2012]; Katz v Katz, 68 AD2d 536 [1979]).”

So, the court punted.  Now what happens?  Does the motion have to be remade now?  Also, was their prejudice because of the late opposition?  Or, is this the Civil Kings briefing schedule shell game that furthers the “gotcha” mentality that no-fault has engendered over the last 15 years?

Service of papers in accordance with the CPLR should be considered even if not in accordance with the Kings County Civil Court briefing schedules

D & r Med. Supply, Inc. v American Tr. Ins. Co., 2012 NY Slip Op 50785(U)(App. Term 2d Dept. 2012).

“In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was granted on default inasmuch as the court refused to consider defendant’s opposing papers as well as its cross motion for summary judgment dismissing the complaint because, while the cross motion and opposing papers had been served 21 days before the return date of the motion, they were untimely pursuant to a briefing schedule set by the Civil Court. Defendant appeals from an order entered July 28, 2010 which denied its motion to vacate the default order entered December 8, 2009 and, upon vacatur, for a new determination of plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment.”

“In the instant case, defendant proffered a reasonable excuse for its failure to timely submit its opposing papers and cross motion, and also set forth a meritorious defense to the action. Accordingly, the judgment is reversed, the order entered July 28, 2010 is vacated, defendant’s motion to vacate the order entered December 8, 2009, which had granted, as unopposed, plaintiff’s motion for summary judgment and had refused to consider, on the ground of untimeliness, defendant’s cross motion for summary judgment dismissing the complaint, and, upon such vacatur, for a new determination of plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint is granted, and plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint are remitted to the Civil Court for a new determination.”

It is a logical result when you think about it.  As long as your follow the CPLR and there is no prejudice, where is the harm?

District Suffolk reversed – Oral applications to vacate a default are not appropriate

State Farm Mut. Auto. Ins. Co. v Young, 2012 NY Slip Op 50686(U)(App. Term 2d Dept. 2012)

“Upon defendants’ default in answering or appearing, an inquest was scheduled. Defendant Robert J. Young appeared at the inquest and orally sought to open his default and to serve and file an answer. By order dated March 4, 2011, the District Court granted the oral application, and defendant Robert J. Young filed a verified answer in which he stated that he was the “wrong person.” Thereafter, plaintiff moved to vacate the March 4, 2011 order or, in the alternative, for summary judgment. Plaintiff’s unopposed motion was denied by the District Court by order dated May 12, 2011, from which plaintiff appeals.”

“such application should have been supported by motion papers on notice to plaintiff (see CPLR 2214)”

This is not the first time I have seen this occur in that particular District Court.

Why take a default in the First Department?

Rally Chiropractic, P.C. v MVAIC, 2012 NY Slip Op 50325(U)(App. Term 1st Dept. 2012)

The record shows that defendant’s failure to appear at the compliance conference resulted from excusable law office failure, and that defense counsel’s miscalendaring of the initial scheduled date was neither willful nor part of a pattern of delay (see The Travelers Ins. Co. v Abelow, 14 AD3d 395 [2005]). Considering the strong policy favoring resolution of cases on the merits (see Chevalier v 368 E. 148th St. Assoc., LLC, 80 AD3d 411, 413-414 [2011]), and in the absence of any argument by plaintiff that the delay caused it prejudice or that defendant lacks a meritorious defense, we exercise our discretion to relieve defendant of its unintended default.

Now, tell me that you did not see this coming?

Default judgment conditionally granted

Eagle Surgical Supply, Inc. v QBE Ins. Co., 2011 NY Slip Op 51455(U)(App. Term 2d Dept., 2011)

“In support of its motion, plaintiff proffered neither a verified complaint nor an affidavit by a party with personal knowledge setting forth the factual basis for the claim, as is required by CPLR 3215 (f). Rather, plaintiff submitted an unverified complaint and an affidavit from an individual who did not establish that he was an employee of plaintiff, did not demonstrate personal knowledge of the facts, and did not establish that the documents annexed to plaintiff’s motion were admissible pursuant to CPLR 4518 (see Andrew Carothers, M.D., P.C. v Geico Indem. Co., 79 AD3d 864 [2010]; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. [*2]Co., 55 AD3d 644 [2008]; Balance Chiropractic, P.C. v Property & Cas. Ins. Co. of Hartford, 27 Misc 3d 138[A], 2010 NY Slip Op 50889[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).”

What I find interesting is that the court did not deny leave to enter a default outright.