Court Declines To Vacate Decision Granting Summary Judgment In Lieu Of Complaint Or Stay Entry Of Judgment Based On Alleged Defects In Service And Attorney Representation

Posted: November 3, 2025 / Written by: Jeffrey M. Eilender, Channing J. Turner, Joshua Wurtzel, Thomas A. Kissane, Samuel L. Butt / Category Summary Judgment in Lieu of Complaint

Court Declines To Vacate Decision Granting Summary Judgment In Lieu Of Complaint Or Stay Entry Of Judgment Based On Alleged Defects In Service And Attorney Representation

On July 9, 2025, Justice Andrea Masley rejected several defendants’ arguments that defects in service of process and ineffective attorney representation warranted vacating the Court’s order granting summary judgment in lieu of complaint or staying entry of a judgment. In MF1 2022-FL9 LLC v. Shmuel Haikins, et al., Index No. 654647/2023, defendants had failed to appear in response to the lawsuit and the Court had granted judgment to plaintiff. Defendants then appeared and moved to vacate the Court’s order and stay entry of judgment on the basis that service had not been effective, as to one party, and counsel had failed to appear as instructed, as to another. The Court rejected these arguments, explaining:

[Defendant] Rubin has provided nothing more than a conclusory denial of receipt. Further, Rubin fails to address the additional first class mailing of the Commencement Papers to his Howell Township residence, which the process server affirms was completed on October 19, 2023 . . . which is particularly important when he acknowledges that he received the Notice of Entry of the 3213 Decision via mail at the same address. . . . That Rubin was allegedly locked out of the Lakewood Office is not a reasonable excuse. Again, Rubin designated the Lakewood Office as his address for notice purposes, as well as for alternative service, in the Guaranty.

As to ineffective representation by counsel, the court wrote:

Schwartz affirms that on September 28, 2023, the day he was served with the Commencement Papers, he emailed [attorney] Yifat Schnur with copies of the Commencement Papers with the understanding that she would appear on the Ohio Defendants’ behalf in this action. . . . [T]he Ohio Defendant’s excuse that they assumed Schnur would oppose the motion is unreasonable. Schwartz’s email to Schnur was never confirmed. Admittedly, there was zero communication between Schnur and the Ohio Defendants from September 28, 2023 until April 2024 even though Schnur was allegedly representing them in opposing a $46 million judgment. The Ohio Defendants have provided no reasonable excuse only evidence of neglect in defending a lawsuit they were admittedly aware of.

The attorneys at Schlam Stone & Dolan frequently advise clients concerning motions to vacate prior orders issued by a court. Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning such issues.