Jackson v. Kothuru

6 Citing cases

  1. HSBC Bank U.S. v. Kantor

    215 A.D.3d 643 (N.Y. App. Div. 2023)   Cited 3 times

    to the plaintiff's ability to oppose the defendant's motion, it did not constitute extrinsic fraud (seeWells Fargo Bank, N.A. v. Plaut, 206 A.D.3d 953, 955, 171 N.Y.S.3d 143 ; HSBC Bank USA, N.A. v. Walker, 201 A.D.3d 795, 797, 162 N.Y.S.3d 82 ). Instead, the defendant's omission constituted intrinsic fraud, or presenting false statements or information to a court, which required the plaintiff to establish a reasonable excuse for its default and a potentially meritorious opposition to the defendant's motion (seeWells Fargo Bank, N.A. v. Plaut, 206 A.D.3d at 954, 171 N.Y.S.3d 143 ; HSBC Bank USA, N.A. v. Walker, 201 A.D.3d at 797, 162 N.Y.S.3d 82 ). Contrary to the defendant's assertions, the plaintiff established a reasonable excuse for failing to oppose the defendant's motion based on a calendaring error made by the plaintiff's counsel (seeMuhammed v. Federal Express Corp., 199 A.D.3d 695, 696, 153 N.Y.S.3d 908 ; Wilmington Trust, N.A. v. Pape, 192 A.D.3d 947, 949, 140 N.Y.S.3d 712 ; Jackson v. Kothuru, 183 A.D.3d 707, 708–709, 121 N.Y.S.3d 893 ). The plaintiff also demonstrated a meritorious opposition to the defendant's motion by showing that the 2007 stipulation would have changed the outcome of the motion.

  2. Valesquez v. Landino

    2023 N.Y. Slip Op. 1023 (N.Y. App. Div. 2023)   Cited 1 times

    In order to vacate a default in opposing a motion pursuant to CPLR 5015(a)(1), the moving party is required to demonstrate a reasonable excuse for the default as well as a potentially meritorious opposition to the motion (see Jackson v Kothuru, 183 A.D.3d 707, 708; Rocco v Family Foot Ctr., 94 A.D.3d 1077, 1079). Here, the plaintiff's excuse of law office failure was reasonable (see Jackson v Kothuru, 183 A.D.3d at 707-709; Lotz v Westbourne Apts., Inc., 159 A.D.3d 810, 812), and she also demonstrated that she had a potentially meritorious opposition to the defendant's motion (see Garcia v City of NY, 189 A.D.3d 788, 789).

  3. Sauteanu v. BJ's Wholesale Club, Inc.

    210 A.D.3d 922 (N.Y. App. Div. 2022)   Cited 5 times

    "Law office failure may qualify as a reasonable excuse for a party's default if the claim of such failure is supported by a credible" and detailed explanation of the default ( Maruf v. E.B. Mgt. Props., LLC, 181 A.D.3d at 671, 121 N.Y.S.3d 282 ; seeDeep v. City of New York, 183 A.D.3d 586, 587, 123 N.Y.S.3d 174 ; OneWest Bank, FSB v. Singer, 153 A.D.3d 714, 716, 59 N.Y.S.3d 480 ). The determination as to what constitutes a reasonable excuse is a matter of the court's discretion, but mere neglect will not suffice (see CPLR 2005 ; Maruf v. E.B. Mgt. Props., LLC, 181 A.D.3d at 671–672, 121 N.Y.S.3d 282 ; Ki Tae Kim v. Bishop, 156 A.D.3d 776, 777, 67 N.Y.S.3d 655 ; Onishenko v. Ntansah, 145 A.D.3d 910, 911, 43 N.Y.S.3d 504 ; see alsoJackson v. Kothuru, 183 A.D.3d 707, 709, 121 N.Y.S.3d 893 ; Ferreira v. Singh, 176 A.D.3d 782, 784, 110 N.Y.S.3d 40 ). Here, a managing attorney at the law firm representing the plaintiff was notified of the February 28, 2018 adjourned deadline to submit opposition papers to the defendants’ motion, and a member of the firm entered a "follow up docket date" for February 7, 2018, "to ensure that the opposition was being handled" (cf. Maruf v. E.B. Mgt. Props., LLC, 181 A.D.3d at 672, 121 N.Y.S.3d 282 ; Matter of Castellotti v. Castellotti, 165 A.D.3d 926, 927–928, 86 N.Y.S.3d 120 ).

  4. Am. Brokers Conduit v. Zamalloa

    2022 N.Y. Slip Op. 4145 (N.Y. App. Div. 2022)

    Here, the plaintiff failed to demonstrate a reasonable excuse for its attorney's failure to appear on the return date of the defendant's motion which resulted in the order dated August 8, 2018 (see Bank of Am., N.A. v Russell, 197 A.D.3d at 449; Thomas v Avalon Gardens Rehabilitation & Health Care Ctr., 107 A.D.3d at 695; Eastern Sav. Bank, FSB v Charles, 103 A.D.3d 683, 684; cf. Jackson v Kothuru, 183 A.D.3d 707, 708-709). Inasmuch as the plaintiff failed to demonstrate a reasonable excuse for its default, this Court need not consider whether it offered a potentially meritorious opposition to the defendant's motion (see Wells Fargo Bank, N.A. v Syed, 160 A.D.3d 914, 915).

  5. Medina v. Merrimac Estates, Inc.

    2021 N.Y. Slip Op. 31778 (N.Y. Sup. Ct. 2021)

    However, the Court disagrees with defendant's interpretation of the application of the law — plaintiff had to demonstrate a "potentially meritorious opposition to [defendant's] motion" (World O World Corp. v Anoufrieva, 163 AD3d 610, 611 [2d Dept 2018] [emphasis added]; see Navarrete v Metro PCS, 137 AD3d 1230, 1231 [2d Dept 2016] ["To vacate the order . . ., which was entered upon the plaintiff's failure to appear at oral argument, the plaintiff was required to demonstrate a reasonable excuse for her default and a potentially meritorious opposition to the respondent's motion] [emphasis added]; Jackson v Kothuru, 183 AD3d 707, 708 [2d Dept 2020] ["In order to vacate a default in opposing a motion pursuant to CPLR 5015(a)(1), the moving party is required to demonstrate a reasonable excuse for the default as well as a potentially meritorious opposition to the motion"] [emphasis added]).

  6. Medina v. Merrimac Estates, Inc.

    No. 2021-31778 (N.Y. Sup. Ct. May. 24, 2021)

    However, the Court disagrees with defendant's interpretation of the application of the law - plaintiff had to demonstrate a "potentially meritorious opposition to [defendant's] motion" (World O World Corp. v. Anoufrieva, 163 A.D.3d 610, 611 [2d Dept 2018] [emphasis added]; see Navarrete v. Metro PCS, 137 A.D.3d 1230, 1231 [2d Dept 2016] ["To vacate the order . . ., which was entered upon the plaintiffs failure to appear at oral argument, the plaintiff was required to demonstrate a reasonable excuse for her default and a potentially meritorious opposition to the respondent's motion] [emphasis added]; Jackson v. Kothuru, 183 A.D.3d 707, 708 [2d Dept 2020] ["In order to vacate a default in opposing a motion pursuant to CPLR 5015(a)(1), the moving party is required to demonstrate a reasonable excuse for the default as well as a potentially meritorious opposition to the motion'"] [emphasis added]).