On July 1, 2020, the Second Department issued a decision in 16501 Jamaica Ave., LLC v. Hara, 2020 NY Slip Op. 03635, dismissing a complaint because of the plaintiff’s failure to seek a default judgment, explaining: In March 2016, the plaintiff commenced this action, inter alia, to recover on a personal guaranty. The defendant failed... Read more »
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Posts Categorized: Default Judgment
If Court Had No Jurisdiction to Enter Judgment, Payment of the Judgment Did Not Extinguish It and so it Could be Vacated
On May 27, 2020, the Second Department issued a decision in Yellowbook, Inc. v. Hedge, 2020 NY Slip Op. 03045, holding that if a court had no jurisdiction to enter judgment, the payment of that judgment did not extinguish the judgment and so the judgment could be vacated, explaining: In 2011, the plaintiff commenced the... Read more »
Bare Assertion of Law Office Failure Insufficient to Justify Vacating Default Judgment
On January 15, 2020, the Second Department issued a decision in Deutsche Bank Natl. Trust Co. v. Fishbein, 2020 NY Slip Op. 00260, holding that the bare assertion of law office failure was an insufficient basis for vacating a default judgment, explaining: In order to vacate a default in appearing at a scheduled court conference,... Read more »
Court Vacates Default Because Lawyer, Not Client, Was to Blame for Failure to Appear at Court Conferences
On January 7, 2020, Justice Borrok of the New York County Commercial Division issued a decision in Elite Limousine Plus Inc. v. RX Med. Dynamics, LLC, 2020 NY Slip Op. 30025(U), vacating a default judgment because the party’s lawyer, not the party, was responsible for the default, explaining: To vacate a default judgment, RX must... Read more »
Court Refuses to Vacate Default Judgment Despite Conclusory Assertions That Service Not Received When Defendant Admitted Being Aware of the Action
On January 2, 2020, the First Department issued a decision in Fisher v. Lewis Constr. NYC Inc., 2020 NY Slip Op. 00041, refusing to vacate a default judgment despite conclusory denials of service, explaining: Defendant failed to establish a reasonable excuse for its default. Plaintiff properly served defendant corporation by means of service upon the... Read more »
Defendant’s Incarceration Not Reasonable Excuse for Default When Defendant Was Represented by Counsel
On December 19, 2019, the First Department issued a decision in Matter of Wimbledon Fin. Master Fund, Ltd. v. Sage Group Consulting Inc., 2019 NY Slip Op. 09109, holding that a defendant’s incarceration was not a reasonable excuse for a default when the defendant was represented by counsel, explaining: To vacate a default judgment under... Read more »
Default Judgment Denied Due to Failure to Prove Damages; Plaintiff Allowed to Take Discovery and Renew Motion
On September 27, 2019, Justice Schecter of the New York County Commercial Division issued a decision in W. & M. Operating, L.L.C. v. Bakhshi, 2019 NY Slip Op. 32865(U), denying default judgment due to a lack of proof of damages but allowing the plaintiff to take discovery and renew the motion, explaining: Porco, however, has... Read more »
Defendant Fails to Provide Adequate Basis for Vacating Default
On September 25, 2019, the Second Department issued a decision in Redbridge Bedford, LLC v 159 N. 3rd St. Realty Holding Corp., 2019 NY Slip Op 06809, holding that a defendant had failed to provide an adequate basis for vacating its default, explaining: In order to be entitled to enter a default judgment upon a... Read more »
Court Erred in Vacating Default When There Was No Reasonable Excuse for the Default
On September 11, 2019, the Second Department issued a decision in EMC Mtge. Corp. v. Walker, 2019 NY Slip Op. 06474, holding that it was error to vacate a default when there was no reasonable excuse for the default, explaining: In order to vacate a default in appearing at a scheduled court conference, a plaintiff... Read more »
Dismissal of Foreclosure Action for Failure to Prosecute Vacated
On September 11, 2019, the Second Department issued a decision in U.S. Bank Natl. Assn. v. Spence, 2019 NY Slip Op. 06529, vacating the dismissal of a foreclosure action for failure to prosecute, explaining: A pleading cannot be dismissed pursuant to CPLR 3216(a) unless a written demand is served upon the party against whom such... Read more »