Two recent New York Appellate Division Second Department decisions articulated the standards of review for appeal of orders entered upon the default of the appealing party for its failure to oppose a motion in two different scenarios – one where the appealing party moved to vacate a default order, Prakope v. Pub. Storage, 186 A.D.3d 1738 (2d Dep’t 2020), and the other where the appealing party did not move to vacate a default order, Vassiliou-Sideris v. Nautilus, Inc., 186 A.D.3d 1756 (2d Dep’t 2020).
In Prakope, a personal injury action, defendant moved to dismiss the complaint due to plaintiffs’ failure to comply with court-ordered discovery. Plaintiffs failed to oppose defendant’s motion to dismiss and the court subsequently granted defendant’s motion pursuant to CPLR 3126(3) to dismiss the complaint. Prakope, at *1739. The court then denied plaintiffs’ motion pursuant to CPLR 5015(a)(1) to vacate the default order. Plaintiffs moved for leave to renew and reargue and the court granted the latter, but adhered to its prior determination.
On appeal, the court stated, “[a] party seeking to vacate an order entered upon its failure to oppose a motion is required to demonstrate, through submission of supporting facts in evidentiary form, both a reasonable excuse for the default and the existence of a potentially meritorious opposition to the motion.” Id. Although a court has the discretion to accept law office failure as a reasonable excuse, a conclusory, undetailed, and unsubstantiated claim of law office failure or mere neglect does not amount to a reasonable excuse.” Id.
In applying this framework, the court held plaintiffs failed to demonstrate law office failure as a reasonable excuse for their default. The court rejected plaintiffs’ associate attorney affirmation, which stated that his office never received a hard copy or electronic copy of the electronically filed motion and that they terminated their calendar paralegal assigned. Id. The court noted there was no affirmation from the managing partner of the law firm to whom the email notification was transmitted and no indication the associate had personal knowledge of the email notification. Id. Moreover, the court held plaintiffs failed to demonstrate a potentially meritorious opposition to defendant’s motion due to plaintiffs’ failure to comply with court-ordered discovery. Id. Furthermore, the court affirmed the trial court’s order denying plaintiffs’ motion for leave to renew because the newly submitted facts would not have changed the prior determination and plaintiffs failed to offer a reasonable justification for their failure to present the new facts on the prior motion. Id. at *1740.
In Vassiliou-Sideris, a consolidated medical malpractice and product liability action, defendants moved separately for summary judgment dismissing the complaint. The court granted plaintiffs’ requests for four adjournments to submit their opposition papers to defendants’ motions. Vassiliou-Sideris, at *1757. Since plaintiffs filed their papers after the court-ordered deadline and defendants rejected the late submission, the court granted defendants’ request to grant their motions as unopposed. Plaintiffs did not move to vacate their default. Id. at *1758.
On appeal, the court cited CPLR 5511, which states no appeal lies from an order or judgment entered upon the default of the appealing party. Moreover, “the granting of such an adjournment for any reason rests within the sound discretion of the Supreme Court.” Id. Therefore, review of the appeal was limited to whether the denial of the plaintiffs’ request for an additional adjournment was a provident exercise of discretion. Id.
The Second Department held the trial court providently exercised its discretion in denying plaintiffs’ request for an additional adjournment to submit their opposition papers to defendants’ motions and rejecting plaintiffs’ excuse for late submission because plaintiffs failed to make an adequate showing of good cause, as they did not offer a valid excuse for the extension. Furthermore, the record showed the need for an adjournment resulted from plaintiffs’ lack of due diligence. Id.
Though factually and procedurally distinct, taken together, these Second Department decisions indicate it will not disturb a trial court’s order entered upon the default of the appealing party absent the requisite showing of a valid excuse.
This alert does not purport to be a substitute for advice of counsel on specific matters.
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