Practice point: In order to vacate a default in opposing plaintiff's motion to strike the answer, pursuant to CPLR 3126, defendant must demonstrate a reasonable excuse for the default and a meritorious defense to both the motion and the action, pursuant to CPLR 5015[a][1].
Practitioners should note that the mere denial of receipt is insufficient to rebut the proof that the motions papers were properly mailed, and the presumption of receipt.
Case: Caprio v. 1025 Manhattan Ave. Corp., NY Slip Op 04367 (2d Dept. 2009)
The opinion is here.
Monday’s issue: Trespass.
There is another instructive case here.
