LAW OFFICE FAILURE

We all make mistakes but when alleging it as an excusable default on a motion to vacate under CPLR 5015 (a) (1), be specific in your allegations.

For example in Bank of N.Y. Mellon v Faragalla, 2019 NY Slip Op 05641, Decided on July 17, 2019, Appellate Division, Second Department:

"A party seeking to vacate a default in opposing a motion or in appearing at a conference must demonstrate both a reasonable excuse for its default and a potentially meritorious cause of action or defense (see CPLR 5015[a][1]; OneWest Bank, FSB v Singer, 153 AD3d 714, 715-716; Flagstar Bank, FSB v Damaro, 145 AD3d 858, 859-860; Bayview Loan Servicing, LLC v Martano, 131 AD3d 1187, 1189; GMAC Mtge., LLC v Guccione, 127 AD3d 1136, 1138).

"A motion to vacate a default is addressed to the sound discretion of the motion [*2]court" (Aurora Loan Servs., LLC v Ahmed, 122 AD3d 557, 557-558 [internal quotation marks omitted]; see U.S. Bank, N.A. v Dorvelus, 140 AD3d 850, 852; Forward Door of N.Y., Inc. v Forlader, 41 AD3d 535). "In making that discretionary determination, the court should consider relevant factors, such as the extent of the delay, prejudice or lack of prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits" (Citicorp Trust Bank, FSB v Makkas, 127 AD3d 907, 908; see Lyubomirsky v Lubov Arulin, PLLC, 125 AD3d 614; Fried v Jacob Holding, Inc., 110 AD3d 56, 60).

Under the circumstances presented here, the appellants set forth a reasonable excuse for their failure to appear at the centralized motion part of the Supreme Court on the return date of the plaintiff's motion based on evidence of law office failure. In an affirmation, the appellants' attorney explained that upon receiving the plaintiff's motion, he directed his office's legal assistant to note the return date of the motion on the office calendar, but that the return date had not been noted on the calendar. In addition, the appellants demonstrated a potentially meritorious defense based upon the statute of limitations. Thus, the Supreme Court improvidently exercised its discretion in denying that branch of the appellants' motion which was to vacate their default in opposing the plaintiff's motion, inter alia, for summary judgment (see Flagstar Bank, FSB v Damaro, 145 AD3d at 859-860; U.S. Bank, N.A. v Bukobza, 142 AD3d 1070, 1071; Bank of N.Y. v Segui, 120 AD3d 1369, 1373-1374; see also CPLR 2005; Bayview Loan Servicing, LLC v Martano, 131 AD3d 1187, 1189)."

Compare that to HSBC Bank USA, N.A. v Coronel, 2019 NY Slip Op 05648, Decided on July 17, 2019, Appellate Division, Second Department:

"We agree with the Supreme Court's determination in an order entered November 28, 2016, to deny the motion of the defendant Alex Coronel (hereinafter the appellant) pursuant to CPLR 5015(a)(1) to vacate a prior order dated November 6, 2015, granting the plaintiff's unopposed motion, inter alia, for summary judgment on the complaint, as well as the court's determination to deny vacatur of an order dated October 7, 2016, granting the plaintiff's motion for a judgment of foreclosure and sale. The appellant's unsubstantiated and conclusory claim of law office failure was insufficient to demonstrate a reasonable excuse for his default in opposing the plaintiff's motion, inter alia, for summary judgment (see Bank of N.Y. Mellon v Ruci, 168 AD3d 799, 800; IndyMac Bank, FSB v Izzo, 166 AD3d 866, 868; Option One Mtge. Corp. v Rose, 164 AD3d 1251, 1252). In light of the appellant's failure to establish a reasonable excuse for his default, it is not necessary to determine whether he demonstrated a potentially meritorious opposition to the motion (see Nationstar Mtge., LLC v Ramnarine, 172 AD3d 886, 887; Bank of N.Y. Mellon v Ruci, 168 AD3d at 800; Hudson City Sav. Bank v Bomba, 149 AD3d 704, 705)."