Practice point: A defendant moving to vacate a default in appearing or answering the
complaint pursuant to CPLR 5015(a)(1) must establish a reasonable excuse
for the default and demonstrate the existence of a potentially
meritorious defense (see CPLR 5015[a][1]. Here, the Appellate Division determined that the defendant's conclusory allegations that it
"misplaced" the summons and complaint, as well as the plaintiff's motion
for leave to enter a default judgment against it and the order granting
that motion, did not constitute a reasonable excuse for its default. In addition, the insurance carrier's lengthy delay before
defending the action, without more, was insufficient to establish a
reasonable excuse.
Student note: As the defendant failed to demonstrate a reasonable excuse for
its default, the Appellate Division did not consider whether it proffered a
potentially meritorious defense to the action.
Case: Blythe v. BJ's Wholesale Club, Inc., NY Slip Op 09094 (2d Dept. 2014)
Here is the decision.
Tomorrow's issue: The recovery of attorneys' fees in a landlord-tenant suit.
