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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: August 20, 2020

Motion to Vacate Denied Because of Unreasonable Delay in Making Motion

On August 19, 2020, the Second Department issued a decision in Pei Qi Chen v. Chen, 2020 NY Slip Op. 04565, holding that a motion to vacate should be denied because of unreasonable delay in bringing it, explaining:

CPLR 5015(a)(3) provides that the court which rendered a judgment or order may relieve a party from it upon such terms as may be just upon the ground of fraud, misrepresentation, or other misconduct of an adverse party. Although there is no express time limit for seeking relief from a judgment pursuant to CPLR 5015(a)(3), a party is required to make the motion within a reasonable time. Here, the respondents’ delay of approximately two years after entry of the judgment in moving to vacate the judgment, despite their awareness of all relevant facts surrounding the issue, was unreasonable.

In any event, the respondents failed to provide a reasonable excuse for the default, which is required when a CPLR 5015(a)(3) motion alleges intrinsic fraud, i.e., that the plaintiff’s allegations are false. The respondents’ conclusory and unsubstantiated allegations of law office failure and incompetence on the part of their prior counsel were insufficient to establish an excusable default.

(Internal quotations and citations omitted).

New York allows a losing party to move to vacate a judgment in certain circumstances. As this decision shows, the circumstances are limited and must have a basis in fact and the motion must be made promptly. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client face a situation where you are unsure whether a decision can be appealed or the judgment can be vacated.

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