Wednesday, November 7, 2012

Vacating a default, and law office failure.

Practice point: To vacate his default in opposing the plaintiffs' motion for summary judgment on the complaint, a defendant is required to demonstrate a reasonable excuse for the default and a potentially meritorious opposition to the motion, pursuant to CPLR 5015[a][1].

Student note: While law office failure can be accepted as a reasonable excuse in the exercise of a court's sound discretion, the movant must submit supporting facts to explain and justify the default, and mere neglect is not accepted as a reasonable excuse.

Case:  Taylor Appraisals v. Prokop, NY Slip Op. 07099 (2d Dept 2012).

Tomorrow’s issue: Collecting attorneys’ fees.