On August 17, 2015, Justice Whelan of the Suffolk County Commercial Division issued a decision in Vin-Mike Enterprises v. Grigg, 2015 NY Slip Op. 31625(U), addressing the procedure for making a motion for relief from judgment under CPLR 5015.
CPLR 5015(a) provides:
The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of: 1. excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry; or 2. newly-discovered evidence which, if introduced at the trial, would probably have produced a different result and which could not have been discovered in time to move for a new trial under section 4404; or 3. fraud, misrepresentation, or other misconduct of an adverse party; or 4. lack of jurisdiction to render the judgment or order; or 5. reversal, modification or vacatur of a prior judgment or order upon which it is based.
(Emphasis added). In Vin-Mike Enterprises, the court began its analysis of the defendant’s motion for relief from judgment by looking at how that motion had been brought:
Subparagraph (a) of Rule 5015 mandates that a person seeking relief from a judgment or order entered in an action move for such relief “with such notice as the court may direct”. Motions pursuant to CPLR 5015(a) are thus required to be interposed by the presentation of an order to show cause providing in blank for court directives regarding the method and manner of service. At least one appellate court has determined that the failure to move for relief pursuant to CPLR 5015(a) by order to show cause is a jurisdictional defect warranting the vacatur of any order issued on an application not compliant with these requirements.
Here, the instant motion was interposed by a mere notice of motion rather than by order to show cause. The court thus had no opportunity to direct the method and manner of service. However, the plaintiff opposed the defendant’s motion and did so without claiming any prejudicial effect. The court shall thus consider the merits of the defendant’s motion as any jurisdictional defect was waived by the plaintiffs failure to object thereto.
(Internal quotations and citations omitted) (emphasis added).