Practice point: To successfully oppose a motion for leave to enter a default judgment
based on the failure to appear or timely serve an answer, a defendant
must demonstrate a reasonable excuse for its delay and the existence of a
potentially meritorious defense. In its discretion, the court may accept law office failure as an excuse, pursuant to CPLR 2005. The claim of law office failure must be supported by a detailed and credible explanation of the default or defaults at issue. Law office failure should not be excused where allegations of law office failure are conclusory and unsubstantiated.
Student note: The Appellate Division determined that the Supreme Court properly exercised its discretion in deeming the defendant's answer,
which was annexed to its opposition papers to the plaintiff's motion, to
be served, even in the absence of a formal notice of cross motion
seeking leave to serve a late answer.
Case: Blake v. United States of America, NY Slip Op 05609 (2d Dept. 2013).
Here is the decision.
Tomorrow's issue: Motions to consolidate or for a joint trial.
