Supreme Court of New York, Appellate Division, Second Department · Civil Procedure
Civil ProcedureDefaultVacaturSummary JudgmentCPLR 5015(a)(1)defaultvacate orderfailure to oppose motion
Facts
The parties were married but had been separated since 1995. In 2012, the plaintiff sued to recover damages for breach of contract and to enforce terms of a 2000 stipulation of settlement concerning maintenance and child support. In March 2013, the plaintiff moved for summary judgment seeking, among other things, $533,000 in unpaid child support. The Supreme Court granted summary judgment for that unpaid child support amount after the defendant failed to oppose the motion, and the defendant later moved to vacate that order.
Issue
When a defendant seeks to vacate an order entered upon his failure to oppose a motion for summary judgment, must he show both a reasonable excuse for the default and a potentially meritorious opposition, and did the defendant make that showing here?
Rule
A defendant seeking to vacate an order entered upon failure to oppose a motion must demonstrate both a reasonable excuse for the default and the existence of a potentially meritorious opposition to the motion. If the defendant fails to establish a reasonable excuse, the court need not determine whether a potentially meritorious opposition exists.
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In Brooklyn, Maya Ortiz sued Daniel Keane for breach of a consulting agreement. Daniel did not file any opposition to Maya’s summary judgment motion, and the court granted the motion on default. Daniel later moved to vacate, attaching invoices and emails that strongly suggest Maya had already been paid, but he gave no explanation at all for why he failed to oppose the motion.
How should the court rule on Daniel’s motion to vacate?
Explanation. A party seeking to vacate an order entered upon failure to oppose a motion must show both a reasonable excuse for the default and a potentially meritorious opposition. Because Daniel offered no reasonable excuse, the motion should be denied without regard to the apparent strength of his opposition. This follows the majority rule stated in Rubinstein v. Rubinstein.