After A. filed a personal injury lawsuit, the defendants sought to dismiss the case due to his disclosure-related lapses. Finding some gaps, a conditional order of dismissal was issued by a Kings County Supreme Court judge, and because A. failed to comply with that order, his case was eventually dismissed.
When A. later moved to vacate his default, citing calendaring errors by his counsel as the reason for his original noncompliance, the judge denied that request. Inexplicably, A. also moved a second time to vacate not only the default-related order, but the subsequent determination denying his first motion, and when that application was also denied, an appeal ensued.
On appeal, the Appellate Division, Second Department, agreed that A.'s default related excuse was "vague and unsubstantiated” and was insufficient to warrant vacatur related relief in his favor, and because his second motion was “procedurally improper,” (as it was based on the same grounds as his first motion), the AD2 left the dismissal undisturbed.
Can you de-fault them for that?
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DECISION