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NO NOTICE + NO APPEARANCE = NO DEFAULT: NOTICE MAY BE NECESSARY BEFORE A DEFAULT CAN BE ENTERED FOR MISSING A COURT APPEARANCE

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  • Posted on: Jan 8 2021

Like attending school in your underwear, missing a scheduled Court appearance is a recurring nightmare for attorneys.  If an appearance is missed, there can be several and severe consequences.  Rule 22 NYCRR 202.27 (Defaults) provides:

At any scheduled call of a calendar or at any conference, if all parties do not appear and proceed or announce their readiness to proceed immediately or subject to the engagement of counsel, the judge may note the default on the record and enter an order as follows:

 (a) If the plaintiff appears but the defendant does not, the judge may grant judgment by default or order an inquest.

 (b) If the defendant appears but the plaintiff does not, the judge may dismiss the action and may order a severance of counterclaims or cross-claims.

 (c) If no party appears, the judge may make such order as appears just.

Generally, “a plaintiff seeking to vacate a default in appearing at a conference is required to demonstrate both a reasonable excuse for its default and a potentially meritorious cause of action.”  Citimortgage v. Espinal, 187 A.D.3d 1131 (2nd Dep’t 2020) (citations and internal brackets and quotation marks omitted).  Similarly, a “defendant who seeks to vacate a default in appearing at a compliance conference is required to demonstrate both a reasonable excuse for the default and a potentially meritorious defense (see CPLR 5015[a][1]; 22 NYCRR 202.27[a]….)  Foley Inc. v. Metropolis Superstructures, Inc., 130 A.D.3d 680 (2nd Dep’t 2015) (some citations omitted).  In Foley, the court struck defendant’s answer for failure to appear at a compliance conference.  On appeal, the Second Department reversed because, inter alia, defendant demonstrated that it did not receive notice of “the adjourned compliance conference” and, absent actual notice of the conference date, the “failure to appear at that conference could not qualify as a failure to perform a legal duty, the very definition of a default.”  Foley, 130 A.D.3d at 681 (citations and internal quotation marks omitted).  Under such circumstances, the Second Department held that “vacatur of the default was required as a matter of law and due process, and no showing of a potentially meritorious defense was required.”  Foley, 130 A.D.3d at 681 (citations omitted).  See also Matter of 542 A Realty, LLC, 118 A.D.3d 993, 994 (2nd Dep’t 2014).

These principles were addressed on December 23, 2020 in the Second Department’s decision in U.S. Bank National Association v. Diez.  Diez was a mortgage foreclosure action in which plaintiff failed to appear at a scheduled status conference.  As a result of the default, supreme court, “sua sponte, directed dismissal of the complaint, with prejudice…” and denied plaintiff’s subsequent motion to vacate the dismissal order.  The Second Department Ordered that the “order [denying plaintiff’s motion to vacate] is reversed, on the law, with costs, and the plaintiff’s motion to vacate the [original dismissal order] and restore the action to the calendar is granted.”  Thus, the Court found that:

Here, in support of its motion to vacate its default, the plaintiff submitted an affirmation from its attorney establishing that the plaintiff did not receive notice of certain scheduled court appearances. In opposition, the defendant did not offer any evidence that the plaintiff received notice of the scheduled appearances. Therefore, the plaintiff’s default was a nullity, and vacatur of the April 20, 2017 order directing dismissal of the complaint based upon that default is required (see Sposito v Cutting, 165 AD3d 863, 865). Accordingly, the Supreme Court should have granted the plaintiff’s motion to vacate that order and restore the action to the calendar. 

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