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Current Developments in the Commercial Divisions of the
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Posted: May 28, 2018

Court Erred by Striking Answer for Failure to Appear at Conference Where No Evidence Party Had Notice of Conference

On May 23, 2018, the Second Department issued a decision in Notaro v. Performance Team, 2018 NY Slip Op. 03692, holding that the IAS court erred in striking the defendant’s answer for failure to appear at a court conference where there was no evidence that the defendant had notice of the conference, explaining:

Generally, to vacate an order striking a defendant’s answer based upon his or her default in appearing for a scheduled conference before the court, the defendant is required to demonstrate both a reasonable excuse for his or her failure to appear and a potentially meritorious defense. However, in the absence of actual notice of a conference date, a defendant’s failure to appear at that conference cannot qualify as a failure to perform a legal duty, the very definition of a default. In that situation, the defendant’s default is considered a nullity and vactur of the default is required as a matter of law and due process, and no showing of a potentially meritorious defense is required.

Here, in support of that branch of his motion which was to vacate his default, Arcell submitted his own affidavit, wherein he stated that he did not appear at any of the court conferences because he did not receive notice of the conferences. In opposition, the plaintiff did not allege or offer evidence that Arcell received notice of the conferences. Therefore, vacatur of his default was required as a matter of law and due process, and no showing of a potentially meritorious defense was required.

(Internal quotations and citations omitted).

If you are served with a complaint and fail timely to answer, or if you answer and do not appear at schedule court appearances, the court can enter judgment against you: a default judgment. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions regarding whether you have been properly served or if a default judgment has been entered against you.

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