Tuesday, August 23, 2016

Vacating a default pursuant to CPLR 5015.

Practice point:  CPLR 5015(a)(1) requires a movant seeking to vacate a default to move within one year of entry of the default and to show both a reasonable excuse for the default and a meritorious defense.  Here, the Appellate Division found that law office failure was a reasonable excuse, noting that, at oral argument, the movant conceded that, in this e-filed case, their office failed to regularly check its email and, as a result, was unaware of the motion court's order that gave rise to the default.  This excuse was sufficiently particularized, and there is no evidence of wilful or contumacious conduct.

Additionally, movant demonstrated a meritorious defense. Petitioner was a probationary employee who was arrested and charged with DWI while still on probationary status. His commercial driver's license, a requirement for a sanitation worker, was suspended and then revoked as a result. Several disciplinary complaints were filed as a result of this incident, and he was subsequently terminated.

Student note:  A probationary employee may be discharged without a hearing or a statement of reasons, in the absence of a demonstration that the termination was made in bad faith, for a constitutionally impermissible purpose, or in violation of statutory or decisional law.

Case:  Matter of Rivera v. New York City Dept. of Sanitation, NY Slip Op 05837 (1st Dep't August 18, 2016)

Tomorrow's issue:  Waiving the issue of standing in a mortgage foreclosure action.