The Fourth Department, in Counsel Fin. Servs., LLC v David Mcquade Leibowitz, P.C., 2009 NY Slip Op 08663 (4th Dept. 2009), observed the following:
“We note at the outset that the contentions of defendants are properly before us despite the fact that the order and judgment was entered upon their default. Although defendants did not move to vacate the order and judgment, they appeared in court on the adjourned return date of the motion and contested the entry of a default judgment (see Spano v Kline, 50 AD3d 1499, lv denied 11 NY3d 702, 12 NY3d 704; Jann v Cassidy, 265 AD2d 873, 874; Spatz v Bajramoski, 214 AD2d 436). Nevertheless, we conclude that the court properly granted the motion.”
“The record establishes that only plaintiff’s counsel appeared in court on the initial return date of the motion but that the court thereafter granted defendants additional time in which to submit papers in opposition to the motion and adjourned the matter to a date subsequent thereto. The court stated that, in the event that defendant failed to appear on the adjourned return date, “the matter will be deemed submitted.” Defendants failed to submit any opposing papers by the date specified by the court and, although defendant appeared in court on the adjourned return date, he requested a second adjournment at that time, in which to prepare opposing papers. The court determined that defendants already were in default at that time, inasmuch as they had failed to submit opposing papers.”
A few things are noteworthy here. First, it seems that Defendant should have probably moved on notice to vacate the default as opposed to attempting to vacate the default through appealing the order that resulted from the hearing. Second, it seems that the Fourth Department really has taken, at least in this case, a really tough line on parties who are not ready on motion return dates.
