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Commercial Division Blog

Current Developments in the Commercial Divisions of the
New York State Courts
Posted: August 20, 2015

Default Not Vacated Because of Lack of Reasonable Excuse

On August 12, 2015, the Second Department issued a decision in Aurora Loan Servs., LLC v. Lucero, 2015 NY Slip Op. 06487, affirming the denial of a motion to vacate a default judgment, explaining:

A defendant seeking to vacate a default in answering a complaint and to compel the plaintiff to accept an untimely answer as timely must show both a reasonable excuse for the default and the existence of a potentially meritorious defense. Here, the defendant . . . failed to establish a reasonable excuse for her default. [The defendant’s] bare and unsubstantiated denial of service lacked the factual specificity and detail required to rebut the prima facie proof of proper service set forth in the affidavit of service of the plaintiff’s process server. Moreover, [the defendant’s] conclusory, undetailed, and uncorroborated allegation of law office failure did not constitute a reasonable excuse.

Since [the defendant] failed to demonstrate a reasonable excuse, it is unnecessary to consider whether she sufficiently demonstrated the existence of a potentially meritorious defense.

(Internal quotations and citations omitted) (emphasis added). It is understandable why counsel would not want to provide a detailed explanation of the law office failure, but counsel that does not do so runs the risk of losing a motion that courts typically grant.

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