“We don’t talk to each other” is reasonable excuse warranting vacatur of default.
As a plaintiff’s counsel, why would you ever oppose a motion to dismiss knowing that the Second Department is going to do it for you on appeal?
In a recent decision the Appellate Division, Second Department reversed a Supreme Court, Nassau County order that denied plaintiff’s motion pursuant to C.P.L.R. § 5015(a)(1) (relief from judgment or order) and granted defendants’ motion, that was unopposed by plaintiff, pursuant to C.P.L.R. § 3211(a)(7) (motion to dismiss the complaint).
In Bayron Chay Mo v. Ultra Dimension Place, LLC, 2025 NY Slip Op 01338, plaintiff alleged that he fell through a hole in a roof while employed by an unnamed subcontractor as a day laborer. Plaintiff brought a lawsuit asserting causes of action including common-law negligence and violations of Labor Law §§ 200, 240(1) and 241(6). The defendants moved early in the litigation to dismiss the complaint pursuant to C.P.L.R. § 3211(a)(7), and the motion was unopposed by plaintiff and the Supreme Court, Nassau County granted the defendants’ motion. Thereafter plaintiff moved pursuant to C.P.L.R. § 5015(a)(1) to vacate the order and to deny defendants’ motion. The Supreme Court, Nassau County denied plaintiff’s subsequent motion and plaintiff appealed.
In its decision, the Appellate Division, Second Department reversed the lower Court’s order and granted plaintiff’s motion. C.P.L.R. § 5015(a)(1) contemplates relief from a judgement or order on the grounds of an excusable fault, and a party seeking relief from an order must demonstrate both a reasonable excuse for the default and potentially meritorious opposition to the defendants’ motion.
Evidently, plaintiff’s counsel had mistakenly thought that a notice of appearance was filed in this matter, which would notify plaintiff of the pending motions. That notice of appearance was not filed.
The Second Department also noted that plaintiff sufficiently pleaded a cause of action as to Labor Law §§ 240(1), 241(6) and 200 and reversed the lower Court’s order.
The word “reasonable” in “reasonable excuse” is doing a lot of heavy lifting in this opinion. It strains reasonableness that the attorneys and support staff at plaintiff’s firm lacked notice of this motion while it was pending in Supreme Court, Nassau County for approximately four (4) months.
The Chay Mo decision can be found here.
For additional information, contact Philip D. Priore, Esq. and/or Michael J. Shields, Esq.
This article was prepared by McCormick & Priore, P.C. to provide information on recent legal developments of interest to our readers. This publication is in no way intended to provide legal advice or to create an attorney-client relationship. All Rights Reserved. This article may not be reprinted without the express written permission of McCormick & Priore, P.C.