On December 24, 2020, Justice Sherwood of the New York County Commercial Division issued a decision in Solomon Capital, LLC v. Lion Biotechnologies, Inc., 2020 NY Slip Op. 34359(U), holding that a verified complaint has the same effect as an affidavit, explaining: Here, plaintiffs have successfully argued that leave for reargument must be granted. The... Read more »
Blogs
Posts Categorized: Default Judgment
Court Erred in Dismissing Action for Failure to Prosecute
On December 23, 2020, the Second Department issued a decision in Deutsche Bank Natl. Trust Co. v. Henry, 2020 NY Slip Op. 07863, holding that a trial court erred in dismissing an action for failure to prosecute, explaining: CPLR 3216 permits a court, on its own initiative, to dismiss an action for want of prosecution... Read more »
Judge Cogan Dismisses Civil RICO Action In Response to Plaintiff’s Motion for Default Judgment
Posted by Solomon N. Klein, Litigation Partner Judge Brian M. Cogan recently dismissed an insurer’s civil RICO action against dozens of named and unnamed defendants alleging a fraudulent no-fault insurance enterprise. The plaintiff moved for default judgment – only to have the Court analyze the complaint and dismiss the action for failing to properly plead... Read more »
Plaintiff Denied Default Judgment Because of Failure to Submit Evidence of Liability
On December 2, 2020, Justice Masley of the New York County Commercial Division issued a decision in 215 W. 28th St. Prop. Owner LLC v. Sibk Constr. Group LLC, 2020 NY Slip Op. 34045(U), denying a motion for default judgment because the plaintiff failed to submit adequate evidence of liability, explaining: On a motion for... Read more »
Court Erred By Dismissing Action Sua Sponte for Failure to Prosecute
On November 12, 2020, the Second Department issued a decision in Wells Fargo Bank, N.A. v. Brown, 2020 NY Slip Op. 06576, holding that a court erred by sua sponte dismissing an action for failure to prosecute, explaining: In this mortgage foreclosure action, the Supreme Court, sua sponte, issued a conditional order of dismissal dated... Read more »
CPLR 3215(c) Requires Only That Plaintiff Move for Default Within One Year, Not That a Default Judgment Be Entered Within One Year
On October 14, 2020, the Second Department issued a decision in Onewest Bank, FSB v. Kanapathipillai, 2020 NY Slip Op. 05764, holding that CPLR 3215(c) requires only that a plaintiff move for a default judgment within one year, not that a default judgment be entered within one year, explaining: The defendant contends that the plaintiff... Read more »
COVID-19 Pandemic No Excuse for Failing to Respond to Motion
On September 30, 2020, Justice Friedman of the New York County Commercial Division issued a decision in Express Trade Capital, Inc. v. Horowitz, 2020 NY Slip Op. 33223(U), holding that the COVID-19 pandemic was not an excuse for failing to respond to a motion, explaining: Defendants also appear to assert that they have an excuse... Read more »
Court Should Not Have Vacated Default Judgment When Loan Servicer’s Excuse Was “Confusion Regarding the Multiple Cases Filed in Multiple Counties”
On October 14, 2020, the Second Department issued a decision in Insiders Success Ventures, LLC v. Onewest Bank, FSB, 2020 NY Slip Op. 05728, holding that the Supreme Court should not have vacated a default judgment when a loan servicer’s excuse was “confusion regarding the multiple cases filed in multiple counties,” explaining: Generally, a defendant... Read more »
Court Gives Defendant Opportunity to Cure Default
On September 1, 2020, Justice Borrok of the New York County Commercial Division issued a decision in Zexin (HK) Leather Co., Ltd. v. Accessories Direct, Intl. USA, Inc., 2020 NY Slip Op. 32895(U), granting a defendant the opportunity to cure its default, explaining: To establish entitlement to default judgment under CPLR § 3215, a plaintiff... Read more »
Complaint Dismissed for Failure to Seek Default Judgment Within One Year
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 »