Appellate Division of the Supreme Court of New York, 2012

Toll Bros. v. Dorsch

Appellate Division of the Supreme Court of New York · Decided January 17, 2012

91 A.D.3d 755; 936 N.Y.2d 576

Cases that cite this one

10 later published cases cite this decision.

Wexler v. Kinder Stuff 2010, LLC (Appellate Division of the Supreme Court of New York 2017)
Skutelsky v. JN Natural Fruit Corp. (Appellate Division of the Supreme Court of New York 2016)
Skutelsky v. JN Natural Fruit Corp. (Appellate Division of the Supreme Court of New York 2016)
Narvaez v. City of New York (Appellate Division of the Supreme Court of New York 2019)
Young Su Hwangbo v. Nastro (Appellate Division of the Supreme Court of New York 2017)
Gomez v. Gomez-Trimarchi (Appellate Division of the Supreme Court of New York 2016)
Apladenaki v. Greenpoint Mortgage Funding, Inc. (Appellate Division of the Supreme Court of New York 2014)
Apladenaki v. Greenpoint Mortgage Funding, Inc. (Appellate Division of the Supreme Court of New York 2014)
Needleman v. Tornheim (Appellate Division of the Supreme Court of New York 2013)
Needleman v. Tornheim (Appellate Division of the Supreme Court of New York 2013)

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

“A defendant seeking to vacate a default pursuant to CPLR 5015 (a) (1) must demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action” (Clover M. Barrett, PC. v Gordon, 90 AD3d 973, 973 [2d Dept 2011]; see Development Strategies Co., LLC, Profit Sharing Plan v Astoria Equities, Inc., 71 AD3d 628 [2010]). “Other factors *756which the court should consider include whether the default prejudiced the opposing party, whether it was willful or evinced an intent to abandon the litigation, and whether vacating the default would serve the strong public policy of resolving cases on their merits when possible” (Dimitriadis v Visiting Nurse Serv. of N.Y., 84 AD3d 1150, 1150-1151 [2011]; see U.S. Bank, N.A. v Dick, 67 AD3d 900, 902 [2009]; Moore v Day, 55 AD3d 803, 804 [2008]).

Here, the defendant established both a reasonable excuse for the default, and the existence of a potentially meritorious defense to the action. Further, there was no showing by the plaintiff that it was prejudiced by the default or that the default was willful, and public policy favors the resolution of cases on their merits (see Dimitriadis v Visiting Nurse Serv. of N.Y., 84 AD3d at 1151; Moore v Day, 55 AD3d at 805; Li Gang Ma v Hong Guang Hu, 54 AD3d 312, 313 [2008]; Ahmad v Aniolowiski, 28 AD3d 692, 693 [2006]). Accordingly, under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying that branch of the defendant’s motion which was pursuant to CPLR 5015 (a) (1) to vacate his default.

In light of our determination, we need not reach the defendant’s remaining contention. Skelos, J.E, Dickerson, Hall, Roman and Cohen, JJ., concur.

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