In E. v. SJ, the Appellate Division, Second Department, addressed a procedural tangle stemming from a breach of contract dispute over property ownership.
The plaintiff, TE, claimed partial ownership of a building held by the defendant, TSJ, and sought damages under various legal theories including breach of contract and constructive trust.
The litigation took a decisive turn when the Kings County Supreme Court granted SJ’s unopposed motion for summary judgment, effectively dismissing E’s claims. E failed to respond to the motion, resulting in a default. He later attempted to revive the case by moving for "renewal and reargument," but the court adhered to its original ruling, finding no basis to reverse the dismissal.
On appeal, the Appellate Division dismissed E's challenge to the original, unopposed order, citing CPLR 5511, which bars appeals from orders entered on default. Although the court opted to treat E’s underlying motion as one to vacate the default, the AD2 nevertheless affirmed the second order, finding that E’s explanation—law office failure—was conclusory and unsubstantiated, and failed to meet the legal standard for a reasonable excuse under CPLR 5015(a)(1).
How's that for inexcusable?
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DECISION