Prior to answering the complaint, the defendant moved pursuant to CPLR 3211(a)(1) to dismiss the complaint. However, the defendant failed to appear in court on the return date, and the motion was marked off the calendar. Thereafter, the defendant moved to vacate its default in appearing on the return date and to restore its motion to the calendar. The Supreme Court granted the defendant's motion, and the plaintiff appeals. The Appellate Division affirms, but notes that, contrary to the defendant's contention, the Supreme Court's denial of the defendant's motion to dismiss the complaint, in a subsequent order, does not render this appeal academic.
195-197 Hewes, LLC v. Citimortgage, Inc., NY Slip Op 05064 (2d Dep't August 31, 2022)
