Summary
The Appellate Division, First Department affirmed the Supreme Court's denial of plaintiff's motion under CPLR 5015 to vacate a default for failing to oppose defendants' motion to reargue a cross-motion to dismiss. The court held that the defendants did not waive their six-year statute of limitations defense because the trial court's prior order extending their time to answer effectively vacated their default. Consequently, the defendants' subsequent motion to reargue was timely filed, and plaintiff failed to demonstrate a potentially meritorious opposition to the time-barred complaint.
Topics
Practice areas
Questions Presented
- Did the defendants waive their statute of limitations defense by failing to answer or otherwise respond?
- Was plaintiff's motion to vacate its default meritorious?
- Was the cross‑motion to dismiss the complaint timely under CPLR 213(6)?
Holdings
- The defendants did not waive their statute of limitations defense; the cross‑motion to dismiss was timely because the trial court’s order vacated the defendants’ prior default.
- The motion was denied because plaintiff did not assert a potentially meritorious opposition to the defendants' motion to reargue.
Key quotations
“Plaintiff's arguments in seeking to oppose defendants' motion to reargue are that defendants waived their right to assert their statute of limitations defense by failing to answer or otherwise respond within the time required. Neither argument constitutes a potentially meritorious opposition (see Forest Walnut LLC v Abizker, 224 AD3d 408, 409 [1st Dept 2024]).” (409)
“Defendants filed their cross-motion to dismiss the complaint on November 14, 2022, ... the court's March 15, 2023 order effectively vacated defendants' 2020 default in answering the complaint, rendering defendants' cross-motion, and thus, its statute of limitations defense, timely (see generally Scott v City of New York, 233 AD3d 456, 456 [1st Dept 2024]).” (456)
Factual background
Plaintiff brought an action in 2020 to correct a defective mortgage recorded in 2005. Defendants Oscar and Lissette Zorrilla never filed an answer. In 2022 plaintiff moved for a default judgment; defendants filed a cross‑motion to dismiss the complaint as barred by the six‑year statute of limitations. The trial court denied both motions, extended defendants' time to answer, then later granted defendants' motion to reargue, finding the statute of limitations defense timely. Plaintiff moved to vacate its default, which was denied.
Procedural history
Plaintiff filed suit in 2020 to correct a defective 2005 mortgage. Defendants never answered. Plaintiff moved for default judgment in 2022; defendants cross‑moved to dismiss as barred by the six‑year CPLR 213(6) limitations period. The Supreme Court denied both motions, extended time to answer, then granted defendants' motion to reargue, reversing its earlier denial. Plaintiff sought to vacate the default; the appellate division affirmed the denial.