Wednesday, August 19, 2015

A failed motion to vacate a default.

Practice point:  The Appellate Division affirmed the denial of the motion, noting that a defendant seeking to vacate a default in answering a complaint and to compel the plaintiff to accept an untimely answer as timely must show both a reasonable excuse for the default and the existence of a potentially meritorious defense. 

Here, the Appellate Division found that defendant failed to establish a reasonable excuse for the default.  The bare and unsubstantiated denial of service lacked the factual specificity and detail required to rebut the prima facie proof of proper service set forth in the affidavit of service of the plaintiff's process server.  In addition, the conclusory, undetailed, and uncorroborated allegation of law office failure did not constitute a reasonable excuse. 

Student note:  As defendant failed to demonstrate a reasonable excuse, it was unnecessary for the Appellate Division to consider whether she sufficiently demonstrated the existence of a potentially meritorious defense.

Case:  Aurora Loan Servs., LLC v. Lucero, NY Slip Op 06487 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  CPLR 317 and an alleged failure to have received process.