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Long Island foreclosure attorneys are often giving consultations to clients who were served a long time ago with the summons and complaint in the foreclosure and are seeking a way to extend their time to answer and/or to vacate an order of reference or a judgement of foreclosure and sale in favore of the plaintiff. Assuming there is a potential service of process issue or other issue that would excuse the defendant’s default, CPLR 5015 can help a Long Island foreclosure lawyer vacate the default judgment favoring the planitiff.

Under CPLR 5015(a), a judgment or decision can be set aside based on a showing of excuse for  the default.  Excusable default can be shown with lack of actual notice of a party’s motion. The Plaintiff’s mailing of the motion to an address or in a manner that does not give the defendant fair notice can qualify as an excusable default.  Pursuant to §5015 (a)(1) a judgment can be set aside based upon “excusable default” due to lack of notice.

CPLR 5105 (1)(a) which deals with relief from judgment or order states:

(a)    On motion. The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested party with such notice as the court may direct, upon the ground of:

1. excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party or , if the moving party has entered the judgment or order, within one year after such entry;

As stated Swensen v MV Transp., Inc., 89 A.D. 924; 933 NYS2d 96 (2^nd Dept. 2011) to vacate a default in opposing summary judgment motion, the defaulting party must demonstrate under CPLR 5015(a)(1) a reasonable excuse for the defaults in opposing the motion and potentially meritorious opposition to the motion.  As stated in Swensen:

To vacate his default in opposing the motion of the defendants MV Transportation, Inc., and Jeffrey Salley (hereinafter together the appellants), the plaintiff was required to demonstrate a reasonable excuse for the default in opposing the motion and a potentially meritorious opposition to the motion (see CPLR 5015 [a] [1]; Ogunmoyin v 1515 Broadway Fee Owner, LLC, 85 AD3d 991 [2011]; Legaretta v Ekhstor, 74 AD3d 899 [2010]; Rivera v Komor, 69 AD3d 833 [2010]; Nowell v NYU Med. Ctr., 55 AD3d 573 [2008]). The determination of what constitutes a reasonable excuse lies within the Supreme Court’s discretion (see White v Incorporated Vil. of Hempstead, 41 AD3d 709, 710 [2007]), and the Supreme Court has the discretion to accept law office failure as a reasonable excuse (see CPLR 2005) where that claim is supported by a “detailed and credible” explanation of the default or defaults at issue (Henry v Kuveke, 9 AD3d 476, 479 [2004]).

The determination of what constitutes reasonable excuse for default lies within the trial court’s discretion. As  in Swenson, the Court stated:   “Here, the plaintiff’s counsel provided a detailed and credible explanation for his default in this matter, which included various acts of misconduct and deception by his former associate attorney who worked on the plaintiff’s matter. The plaintiff also demonstrated a potentially meritorious opposition to the appellants’ motion for summary judgment.”

Also see Eastern Sav. Bank, FSB v Charles, 103 46 A.D.3d 683; 959 N.Y.S.2d 704(2^nd Dept 2013); Green Apple Mgt. Corp. v Aronis, 46 A.D.3d 669, 865 N.Y.S.2d 355 (2^nd Dept 2008; Levi v. Levi, 46 A.D.3d 519, 520, 848 N.Y.S.2d 228 (2^nd Dept 2007).

Proof that the Defendant moved from his former residence and did not receive the Plaintiff’s papers has been considered a “reasonable excuse.” Willen v. Richards, 33 Misc. 3d 32, 932 N.Y.S. 2d 305 (Aug. 5, 2011).  Here, I have shown proof that during the period where I was allegedly served I was not actually living at my residence.

Furthermore, law office failure by a litigant’s former attorney has been broadly considered to constitute “reasonable excuse,” especially when it is unintentional. See, Auto Distributors v. Auto Collection, 85 A.D.3d 734, 925 N.Y.S. 2d 151 (2 Dept. 2011); Easton v. Associates Leasing, 24 A.D. 3d 141, 805 N.Y.S. 2d 333 (1^st Dept. 2005); Green Apple Mgmt, Id.; Piszczatowski v. Hill, 93 A.D. 3d 707, 940 N.Y.S. 2d 283 (2 Dept. 2012); Infante v. Breslin Realty, 95 A.D. 3d 1075, 944 N.Y.S. 2d 283 (2 Dept. 2012); Romanian Orthodox Church v. Zindel, 44 A.D. 2d 744, 843 N.Y.S. 2d 414 (2^nd Dept. 2007) (failure of counsel to oppose motion for summary judgment was isolated and unintentional with no evidence of willful neglect).

Other factors in deciding whether to vacate a default are the prejudice to the other party by the delay. Here, the Court’s decision is only several months old and the Plaintiff has taken no other actions since the decision and therefore would not be prejudiced if the decision was vacated and I could defend on the merits as is favored by public policy. See, Petulla Contracting v. Raneri, 94 A.D. 3d 751, 941 N.Y.S. 2d 659 (2 Dept. 2012).

Therefore, given the a foreclosure defendant that never received actual notice of the Plaintiff’s Motion may ask for the vacating of a decision granted to the Plaintiff on default.

To assess whether a default in a foreclosure can be vacated call Long Island Foreclosure Lawyer, Ronald D. Weiss, Esq.  for a free consultation.