Appellate Division of the Supreme Court of New York, 1997

Achampong v. Weigelt

Appellate Division of the Supreme Court of New York · Decided June 12, 1997

240 A.D.2d 247; 658 N.Y.S.2d 606; 1997 N.Y. App. Div. LEXIS 6521

Cases that cite this one

9 later published cases cite this decision.

Cole-Hatchard v. Eggers (Appellate Division of the Supreme Court of New York 2015)
1234 Broadway LLC v. Caroline K. (Civil Court of the City of New York 2015)
Youni Gems Corp. v. Bassco Creations Inc. (Appellate Division of the Supreme Court of New York 2010)
Perez v. New York City Housing Authority (Appellate Division of the Supreme Court of New York 2008)
Avery v. Caldwell (Appellate Division of the Supreme Court of New York 2008)
Hyundai Corp. v. Republic of Iraq (Appellate Division of the Supreme Court of New York 2005)
Mazelier v. 634 West 135, LLC (Appellate Division of the Supreme Court of New York 2005)
Huggins v. Parkset Supply, Ltd. (Appellate Division of the Supreme Court of New York 2005)
Robert Marini Builder, Inc. v. Rao (Appellate Division of the Supreme Court of New York 1999)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

Order of the Supreme Court, Bronx County (Jerry Crispino, J.), entered September 18, 1995, which, inter alia, granted defendants’ cross-motion for renewal of a prior motion to vacate a default, is unanimously reversed, on the law and facts, with costs and disbursements payable to plaintiff, and defendants’ cross-motion is denied.

In this case, the prior default motion was contested by defendants, who, thereafter, neither appealed nor moved for reargument/renewal within the statutory 30 day period pursuant to CPLR 5513. We have previously noted: "Where, as here, a party appears and contests an application for entry of a default judgment, CPLR 5511, prohibiting an appeal from an order or judgment entered upon default, is inapplicable, and the judgment predicated upon the party’s default is therefore *248appealable (Marrocco v Marrocco, 90 AD2d 989). The IAS Court therefore properly determined that the appellant’s prior failure to take a timely appeal from entry of the contested judgment was fatal to the subsequent vacatur motion (Pergamon Press v Tietze, 81 AD2d 831).” (Spatz v Bajramoski, 214 AD2d 436.)

Motions for reargument / renewal of a contested motion also are required to be made within the same statutory period in which an appeal may be taken (Henegar v Freudenheim, 40 AD2d 825). Since the defendants herein failed to either appeal or move to renew/reargue the order entered June 29, 1994 within the statutory period, the IAS Court erred in failing to deny the cross-motion to renew and in vacating the default.

Moreover, to vacate a default judgment, a party must demonstrate both a meritorious defense and a reasonable excuse for the default (Arias v Sanchez, 227 AD2d 284). While law office failure is an acceptable excuse for vacating a default (CPLR 2005), the conclusory assertion of misplacement of a file, the excuse offered herein by defendants for the delay in bringing the renewal motion, "is rarely an acceptable excuse” (Robinson v New York City Tr. Auth., 203 AD2d 351). Nor are "bare allegations of incompetence on the part of prior counsel” a basis to vacate a default (Spatz v Bajramoski, supra, at 436). Accordingly, even if the motion were not untimely, the IAS Court improvidently exercised its discretion in vacating the default. Concur—Milonas, J. P., Ellerin, Nardelli and Tom, JJ.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.