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Current Developments in the Commercial Divisions of the
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Posted: December 8, 2014

Conclusory Allegations of Law Office Failure Insufficient to Justify Vacating Default Judgment

On December 3, 2014, the Second Department issued a decision in Neilson v. 6D Farm Corp., 2014 NY Slip Op. 08409, affirming the denial of a motion to vacate a default judgment.

In Neilson, the Second Department affirmed, among other things, a trial court decision denying a motion for leave to file a late answer and counterclaims, explaining:

CPLR 3012(d) provides that, upon the application of a party, the court may extend the time to appear or plead, or compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay or default. Upon an application for an extension of time under CPLR 3012(d), the court may exercise “its discretion in the interests of justice to excuse delay or default resulting from law office failure. However, any claim of law office failure must be supported by a detailed and credible explanation of the default at issue. A conclusory, undetailed, and uncorroborated allegation of law office failure does not amount to a reasonable excuse.

Here, as the Supreme Court correctly noted, Carr provided no explanation as to why the appellants failed to serve and file a timely answer to the fifth cause of action or to move in a timely fashion to renew their prior motion for leave to serve and file a late answer. In fact, there was an unexplained delay of one year between the retransfer of the case to the Supreme Court and the motion for leave to serve and file a late answer on behalf of the appellants. Carr’s unsubstantiated and conclusory claims were insufficient to establish a reasonable excuse for the failure of BDF and the estate to serve and file an answer.

(Internal quotations and citations omitted) (emphasis added). The standard for vacating a default is not a high one. Still, as this decision shows, a defendant must make a real factual showing that meets that standard; a conclusory recitation of the standard will not do.

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