Once she obtained same, said counsel immediately apprised himself of the situation and filed the motion to vacate the default judgment. "A motion to vacate a prior judgment or order is addressed to the court's sound discretion, subject to reversal only where there has been a clear abuse of that discretion" (Hayes v Village of Middleburgh, 140 AD3d 1359, 1362 ).Ĭontrary to plaintiff's contentions, the record evinces that, despite encountering several obstacles, defendant diligently sought representation in order to respond to plaintiff's motion. "The reasonableness of proffered excuse must be assessed based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits" (Luderowski v Sexton, 152 AD3d 918, 919-920 ). A party seeking to vacate a judgment or order based on default "must demonstrate a reasonable excuse for the default and the existence of a meritorious defense" (Inwald Enters., LLC v Aloha Energy, 153 AD3d 1008, 1010 ). Plaintiff contends that Supreme Court erred in vacating the default judgment. Plaintiff appeals from the June 2019 and October 2019 orders. In October 2019, Supreme Court denied plaintiff's motion and granted defendant's cross motion. The court then recalendared plaintiff's motion to restore the matter to the calendar, to which defendant cross-moved to dismiss the complaint against her pursuant to CPLR 3215 (c). Supreme Court granted defendant's motion in June 2019 and vacated the default judgment, finding the existence of a meritorious defense and a reasonable excuse for her failure to appear. In March 2019, defendant moved to vacate the default judgment pursuant to CPLR 5015. In February 2019, defendant's counsel filed a notice of appearance and learned that Supreme Court (Nolan Jr., J.) had granted plaintiff's December 2018 motion and entered a default judgment against defendant in January 2019. Upon receipt of the motion, defendant sought representation from various legal assistance programs and eventually obtained pro bono counsel. In December 2018, plaintiff moved for an order restoring the action to the calendar, an order of reference and a default judgment. Defendant advised plaintiff of his death but was informed that a representative of plaintiff could not speak to her. Plaintiff did not comply, and the case was administratively closed and stricken from the court's calendar on April 17, 2013. In February 2013, Supreme Court (Chauvin, J.) ordered plaintiff to file a motion for an order of reference within 60 days, cautioning that failure to timely file the motion could result in the case being administratively closed as abandoned. When no settlement occurred, the parties were released from the settlement process. Pursuant to CPLR 3408, the parties participated in mandatory settlement negotiations. In 2009, following Richards' alleged failure to remit payment pursuant to the note, plaintiff commenced a mortgage foreclosure action against, among others, both Richards and defendant. The note was subsequently assigned to plaintiff. As security for payment of the note, Richards and his wife, defendant Terri Richards (hereinafter defendant), executed a mortgage placing a lien against their jointly owned property. In 2007, defendant Patrick Richards (hereinafter Richards) executed a note for $92,500. Burgess of counsel), for respondent.Īppeals (1) from an order of the Supreme Court (Nolan Jr., J.), entered Jin Saratoga County, which granted defendant Terri Richards' motion to, among other things, vacate a default judgment, and (2) from an order of said court, entered Octoin Saratoga County, which, among other things, granted defendant Terri Richards' cross motion to dismiss the complaint against her. Oster of counsel), for appellant.īurgess & Associates PC, Clifton Park (Peter L. Shapiro, DiCaro & Barak, LLC, Rochester (Ellis M. Patrick Richards et al., Defendants, and Terri Richards, Respondent.īefore: Garry, P.J., Egan Jr., Lynch, Clark and Reynolds Fitzgerald, JJ. The Bank of New York, as Trustee, Now Known as the Bank of New York Mellon, Appellant, This opinion is uncorrected and subject to revision before publication in the Official Reports. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
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