Monday, May 23, 2016

CPLR 5015 and vacating a default.

Practice point:  Where a defendant seeks to vacate a default under both CPLR 5015(a)(1), excusable default, and (a)(4), lack of jurisdiction, the court will first determine whether it has personal jurisdiction over the defendant, as, if it does not, it need not determine whether the default is excused.

 Student note:  A determination under (a)(4) requires no discretion, while (a)(1) requires the court to exercise its discretion.

Case:  Wells Fargo Bank, N.A. v. Jones, NY Slip Op 03838 (1st Dep't May 17, 2016)

Here is the decision.

Tomorrow's issue:  A school's duty to supervise.