Thursday, June 16, 2016

Vacating a default judgment.

Practice point:  The Appellate Division reversed the denial of defendant's motion to vacate a default judgment against him, finding that the suspension of defendant's counsel during the pendency of this action resulted in an automatic stay of the proceedings against defendant until thirty days after notice to appoint another attorney was served upon him, or until the court granted leave to resume proceedings, pursuant to CPLR 321[c].  Because there was no compliance with the leave or notice requirements of CPLR 321(c), and defendant did not retain new counsel until February 2014, the automatic stay was in place when the November 22, 2013 judgment was entered based upon defendant's default. Accordingly, the judgment must be vacated.

Student note:  Defendant's failure to invoke CPLR 321(c) until submission of his reply papers on his motion does not result in a waiver of his argument.  Neither was he required to submit an affidavit of merit.

Case:  Duandre Corp. v. Golden Krust Caribbean Bakery & Grill, NY Slip Op 04461 (1st Dep't June 9, 2016)

Here is the decision.

Tomorrow's issue: Discovery and the production of electronic documents.