Key Takeaway
First Department applies stringent default vacatur standard in Tri-State v Hereford, requiring reasonable excuse and meritorious defense despite public policy favoring merits.
Matter of Tri-State Consumer Ins. Co. v Hereford Ins. Co., 2018 NY Slip Op 08249 (1st Dept. 2018)
“Although “there exists a strong public policy in favor of disposing of cases on their merits, … this policy does not relieve a party moving to vacate a default from satisfying the two-pronged test of showing both (1) a reasonable excuse for the default; and (2) a meritorious defense to the action” (Johnson-Roberts v Ira Judelson Bail Bonds, 140 AD3d 509, 509 ). Despite Tri-State’s contention that this Court has excused defaults caused by an attorney’s inadvertent failure to make a court appearance due to lack of notice (see Toos v Leggiadro Intl., Inc., 114 AD3d 559 ), “claims of law office failure which are conclusory and unsubstantiated’ cannot excuse default” (Galaxy Gen. Contr. Corp. v 2201 7th Ave. Realty LLC, 95 AD3d 789, 790 ).
At least two of Tri-State’s multiple defaults lack a substantiated excuse – its failure to submit opposition, and its failure to appear at the November 16, 2015 hearing despite counsel’s assignment two months prior – and those incidents, in addition to a pattern of dilatory conduct, warrant affirmance of the order on appeal.”
For a Court that historically excuses defaults, this was a bit harsh. It also appears that a meritorious defense existed, hence the failure to address the merits of the action.
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