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Allen v. Faulkner

Defendants Granted Vacatur of Default Judgment, But Fail to Show Entitlement to Dismissal

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The following papers numbered 1 to _4_ Read on this motion, VACATE DEFAULT/DISMISSAL Noticed on December 11, 2017 and duly submitted on the Motion Calendar of December 11, 2017:PAPERS NUMBEREDNotice of Motion — Exhibits and Affidavits Annexed    1,2Answering Affidavit and Exhibits     3,4Answering Affidavit and ExhibitsAffidavits and ExhibitsPleadings — Exhibit

*1 Upon the foregoing papers, by way of order to show cause, defendants Alonzo Faulkner (named fictitiously herein as John Doe #1)(hereinafter, “Alonzo”) and Delores Haywood McDuffie, n.k.a. Delores Swinesburg (hereinafter, “Delores”)(collectively, “Defendants”) move for an order (1) pursuant to CPLR 5015(a), vacating the default judgment against Defendants issued on July 13, 2017; (2) dismissing this action pursuant to CPLR 3211(a)(1), (3), (5), (7) and/or (10). The plaintiffs Sabrina Allen, Wallace Haywood III, and Keith Haywood (collectively, “Plaintiffs”) oppose the motion.Under CPLR 5015(a)(1), a defendant may be entitled to vacatur of a default judgment where it demonstrates a reasonable excuse for its delay in appearing and answering the complaint, and a meritorious defense to the action (see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138 [1986]). CPLR 317 provides an additional avenue for relief from a default judgment, as it states that “[a] person served with a summons other than by personal delivery to him or to his agent for service under [CPLR] 318…may be allowed to defend the action within one year after he obtains knowledge of entry of the judgment…upon a finding of the court that he did not personally receive notice of the summons in time to defend and has a meritorious defense” (id., at 141-142).In this case, Delores established a reasonable excuse for her default under CPLR 317 by alleging

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