A. Altman, P.C., Bronx (Joseph A. Altman of counsel), for
Goodman & Saltzman, Mont Vernon (Kenneth B. Saltzman of
counsel), for David Cole, respondent.
Christina A. Marino, Floral Park, for Steven Berrins,
J.P., Renwick, Saxe, Feinman, Gesmer, JJ.
Supreme Court, Bronx County (Norma Ruiz, J.), entered on or
about June 12, 2015, which denied plaintiff Karl
Marston's motion to vacate an order, entered on default,
granting defendants Steven Berrin's motion and David
Cole's cross motion to amend their respective answers to
include the affirmative defenses of the statute of
limitations and equitable estoppel, and to dismiss the
complaint, affirmed, without costs.
court may grant a motion to vacate a default on grounds of
excusable default and a showing of a meritorious defense, if
the motion is made within one year after service of the order
entered on default, with written notice of its entry
(see CPLR 5015[a] ; see also Caba v Rai,
63 A.D.3d 578, 580 [1st Dept 2009]). Marston did not move to
vacate the order entered on default until February 18, 2014,
nearly 18 months after he was served with the order and
requisite notice. Furthermore, in support of his motion,
Marston sought to demonstrate a meritorious defense by making
a statement directly contrary to a critical allegation in his
complaint. Accordingly, the motion court providently
exercised its discretion not to vacate the default (see
Greenwich Sav. Bank v JAJ Carpet Mart, 126 A.D.2d 451,
452-453 [1st Dept 1987]).
agree with the result reached by the majority, I write
separately because I would affirm the order on appeal because
the motion court providently exercised its discretion in
denying the vacatur motion on the ground that plaintiff did
not move to vacate the order entered on default until nearly
18 months after he was served with the order and notice of
its entry, and did not provide a reasonable excuse for the
default (see CPLR 5015[a]; Nash v Port Auth.
of N.Y. & N.J., 22 N.Y.3d 220, 225 ).
commenced this action for money damages and cancellation of a
deed in 2009. In March 2011, defendants-respondents
(defendants) moved for leave to amend their answers to assert
the affirmative defenses of the statute of limitations and
equitable estoppel, and for dismissal of the complaint. The
next month plaintiff's counsel moved to withdraw as
attorney citing "[i]rreconcilable differences" and
the fact that it had become "apparent" that
plaintiff was not forthright in revealing all information
related to the case.
order entered December 28, 2011, the motion court granted
counsel's motion to withdraw, adjourned defendants'
motions for leave to amend and dismiss until February 6,
2012, to allow plaintiff time to find new counsel, and
directed defendants to serve plaintiff at his last known
address with those pending motions. However, plaintiff never
hired a new attorney until more than two years later and
never responded to the motions.
by order dated August 12, 2012, the court granted
defendants' motions for leave to amend their answers to
assert the additional affirmative defenses of equitable
estoppel and statute of limitations, and upon such leave,
granted the accompanying motions to dismiss the complaint on
the order entered upon default with written notice of its
entry was served upon plaintiff on September 7, 2012 at six
different addresses that appeared on various loan documents
and court filings by plaintiff, plaintiff failed to move to
vacate the default until February 28, 2014, approximately 18
months later. Plaintiff claimed that due to his lack of funds
and the complicated nature of the action he had not been able
to find an attorney to represent him until that time. He also
claimed he never received a copy of defendants' motions
from defendants, insinuating he had no knowledge of the
motions. However, he never refuted that his attorney sent him
the December 2011 order granting counsel's motion to
withdraw, or that he was served with the August 2012 order
entered on default.
plaintiff's failure to comply with the deadline set forth
in CPLR 5015(a)(1) was fatal to his motion. Unlike the other
grounds for vacatur provided in CPLR 5015, pursuant to which
a motion must be made in a "reasonable time, " a
motion to vacate based on an excusable default must be made,
in relevant part, within one year after service of the
relevant judgment or order with written notice of its entry
(Nash, 22 N.Y.3d at 225; David D. Siegel, Practice
Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR
C5015:3). This firm deadline has been consistently recognized
and applied by this Department (see e.g. Gottlieb v
Northriver Trading Co. LLC, 106 A.D.3d 580, 580 [1st
Dept 2013] [referring to the "one-year deadline of CPLR
5015"]; Carrillo v New York City Tr. Auth., 39
A.D.3d 296 [1st Dept 2007] [noting that the "[p]laintiff
had one year from service of notice of entry of the order
granting summary judgment on default to make the motion to
plaintiff failed to proffer an excusable default. Plaintiff
claims that he never received a copy of defendants'
motions and thus was unaware of them. However, he never
refuted that he was served with his prior counsel's
motion to withdraw, and the record contains a letter from
plaintiff's prior counsel indicating that he indeed
served plaintiff with his withdrawal motion. Notably,
attached to the withdrawal motion was counsel's
affirmation stating that, in preparing a response to
defendants' pending motions, plaintiff wanted him to make
an untrue statement in opposition to the motions. Notably,
counsel's statements were made in an affirmation under
the penalties of perjury and there is no basis to question
counsel's credibility. In other words, counsel's
motion to withdraw discloses that plaintiff was well aware of
defendants' motions from their "inception, "
having discussed with counsel the response to ...