NEWS & INSIGHTS

26 May, 2023
There are a lot of complexities in the world of law, and one such complexity is CPLR 5015(a)(1) and its implications on timing for vacatur applications. Today, we’re going to take a deep dive into the understanding of this rule and how it applies.  What is CPLR 5015(a)(1)? This particular rule is part of the Civil Practice Law and Rules in New York, specifically addressing the vacating or setting aside of a judgment or order. When it comes to vacatur applications, there's a 'hard-and-fast' one-year time limit under CPLR 5015(a)(1), but this only applies when the vacating ground is potentially excusable. The time frame begins, not from the 'entry' of the order or judgment, but from the 'service' of the order or judgment with notice of entry. The Clock Doesn't Start Until You Know In simple terms, the clock starts ticking when you're informed about the order or judgment. This seems like common sense. After all, how can you be expected to comply with or appeal something you aren't aware of? The dates of service are always documented, which makes the computation of the one-year deadline easy and objective. Exceptions and Inherent Authority The courts maintain an inherent authority to vacate their orders when justice demands it, despite the time-limiting language of the statute. So, even if the one-year statutory deadline has passed, courts might consider the vacatur motion on the merits, if the circumstances are compelling enough. But be prepared to provide a reasonable excuse for the delay. Don't Wait Unless You Have To While courts may sometimes show flexibility, it's always best to play it safe. Whenever possible, file the order to show cause to vacate a judgment or order rendered on default within the time prescribed by the statute. If you're late, you’ll have to deal with the complications of explaining the delay. Other Important Considerations Another key point to note is that parties moving to vacate defaults under CPLR 5015(a)(1) must demonstrate a potentially meritorious claim or defense. In other words, you must show that you have a valid reason for why the initial order or judgment should be vacated. Exceptions to the Timing Rule While there's a time limit for vacating excusable defaults under CPLR 5015(a)(1), there are circumstances that could legally supersede the statutory deadline. An example of such a situation is the COVID-19 shutdowns in 2020 and 2021, during which a series of Executive Orders were issued that tolled time limits in the courts. In conclusion, while CPLR 5015(a)(1) and the time limit for vacatur applications might seem like a rigid rule, there are layers of interpretation and considerations involved. As always, every case is unique, and you should consult with an experienced attorney to understand your specific situation.
Traffic Stop and Traffic Ticket
By David Arpino 18 Dec, 2022
An overview of the Head of the Harbor Village Justice Court.
By David Arpino 25 Apr, 2022
Facutal errors in accusatory instruments require superseding information.
Handcuffs
By Arnold A. Arpino 21 Apr, 2022
Recent police enforcement of paper license plate violations.
By Arnold Arpino 01 Jan, 2022
New York State is going to reduce the interest on consumer money judgments beginning on April 30, 2022 from 9% to 2%.
By Arnold A. Arpino 21 Aug, 2021
An overview of the criminal penalties and civil enforcement provisions of the New York State Highway Use Tax law.
By David A. Arpino 04 Aug, 2021
In New York, the Domestic Relations Law sets forth multiple grounds for divorce in New York. The "traditional" grounds for divorce, including adultery, have been rendered nearly extinct because of New York's passage of equitable distribution and the "No-Fault" divorce that was added in 2010.  Even with the passage of the "No-Fault" divorce law, there are circumstances where allegations of adultery still have great significance in matrimonial actions. Last week, the Appellate Division, Second Department was able to weigh in on such a case. In an opinion, Justice Dillion, stated the the case provided the Court an opportunity examine, and "sharpen for the matrimonial bar" the evidence that a party must present to establish a cause of action alleging adultery. Justice Dillion's Legal Analysis Justice Dillion starts by recognizing that allegations of adultery come with unique evidence issues. The conduct, for the most part, is often clandestine and out of public view. And proving it usually will depend on circumstantial evidence, rather than direct proof. That's why since at least 1877, the appellate courts in New York have held that adultery may be proved circumstantially by showing a (1) lascivious desire, and (2) the opportunity to gratify the desire, and (3) acting upon the desire. The court went on to highlight there is almost no law addressing summary judgment motions to establish, or dismiss, claims of adultery. This is for three main reasons. First, until 1979, parties in a matrimonial action were prohibited from moving for summary judgment. "Reverse summary judgment" was also not allowed, that procedure being where a party would simply admit all the allegations in a complaint or counterclaim and move for a judgment on the pleadings. Another reason why there is so little case law is the equitable distribution law itself. Marital fault is not among any of the factors to be considered for equitable distribution, and absent very rare circumstances, the reason for the dissolution of the marriage does not impact how marital assets are going to be distributed. The parties to a matrimonial action pay little attention to fault, but rather care more about matters of equitable distribution, parental access to children, child support and add-on expenses, and spousal maintenance. Finally, the passage of New York's "No-Fault" divorce law in 2010 has had the practical effect of displacing the other grounds that may have been asserted and litigated in matrimonial actions. By extension, these reasons have resulted on fewer and fewer decisional authorities on grounds, including adultery. "Proximity Plus Standard" As stated earlier, the three-part test for circumstantially prove adultery is desire, opportunity, and intent. But Justice Dillion notes that those elements date back to a time when women were not routinely in workplaces as they are now. Society was also less mobile, with cars and airplanes used far less than they are today. He further notes that men and women work in the same locations, attend meetings, share lunches, exercise at gyms, and travel together for business. As a result, the "opportunity" for infidelity can't simply be "proximity" but instead it must be "proximity plus." The "plus" also need not be irrefutable evidence, all it needs to be are facts from which reasonable inferences may be draw, that goes beyond the mere proximity of the two people themselves. The Court gives examples like: hotel receipts, plane tickets to destinations deviating from the norm, suspicious emails or other writings (text messages or social media messages), or suspicious conversations overheard by a witness. Why did this Matter? You might be asking yourself, if New York is a "No-Fault" divorce state, then why was this even litigated at the Appellate Division? Well the details matter. Apparently, the parties executed a prenuptial agreement where the husband agreed that if he engaged in infidelity, the wife would receive up to 80% of his future gross lifetime earnings from all sources, and 80% of all marital assets. As a result, the viability or non-viability of the adultery counterclaim had obvious financial ramifications to the outcome of the divorce action.
By David A. Arpino 04 Aug, 2021
New York's highest court recently visited the topic of out-of-network medical providers providing patient care to people covered by the New York State Health Insurance Program (or the Empire Plan as it is commonly called). In the Matter of Plastic Surgery Group P.C., v. Comptroller of the State of N.Y. , it was held that the Comptroller of the State of New York has constitutional and statutory duty to audit payments of state money, including payments to private companies that provide health care to beneficiaries of a state program.
By Arnold A. Arpino 04 Aug, 2021
It is possible that a creditor may freeze your bank account after they have received a Court judgment. A creditor does not have to warn you before placing a freeze on your account, and often times you will not know about a freeze until attempting to use your debit card. Our office can help you remove the freeze on your bank account. If a creditor has frozen your bank account, they need to follow certain procedures. If the procedures below are not followed; the freeze on your bank account might be void or there could be a violation of your due process rights. (See Distressed Holdings, LLC v Ehrler, 976 NYS2d 517 [2d Dept 2013]) Specifically, subdivision (b)(3) of New York Civil Practice Law and Rules § 5222–a provides that “[w]ithin two business days after receipt of the restraining notice or execution, exemption notice and exemption claim forms, the banking institution shall serve upon the judgment debtor the copy of the restraining notice, the exemption notice and two exemption claim forms.” However, New York banks do not always comply with the law as subdivision (b)(3) provides that the inadvertent failure of a depository institution to provide the required notice to the judgment debtor shall not give rise to liability on the part of the depository institution (see CPLR 5222–a[b][3] ). The exemption notice advises the judgment debtor that his or her bank account has been restrained or frozen (see CPLR 5222–a[b][4] ). The exemption notice also advises the judgment debtor that certain funds, which may be on deposit in the restrained bank account, are exempt from restraint and cannot be taken by the judgment creditor to satisfy the judgment (see CPLR 5222–a[b] [4] ). These funds include, among other things, social security benefits, social security disability benefits, and income earned in the last 60 days (90% of which is exempt) (see CPLR 5222–a[b][4]; Matter of North Shore Univ. Hosp. at Plainview v. Citibank Legal Serv. Intake Unit, 25 Misc.3d 655, 657–658, 883 N.Y.S.2d 898 [Nassau Dist. Ct. 2009] ). In addition, the exemption notice, inter alia, “advises the judgment debtor that to claim the exemption, the judgment debtor should complete the exemption claim form and deliver or mail it to the bank in which the restrained account is maintained and the judgment creditor or the judgment creditor's attorney within 20 days of the postmark date on the envelope holding the exemption notice” (Matter of North Shore Univ. Hosp. at Plainview v. Citibank Legal Serv. Intake Unit, 25 Misc.3d at 658, 883 N.Y.S.2d 898; see CPLR 5222–a[b][4][a], [b] ). If your bank account has been frozen, contact our office immediately for a free consultation to determine if we can assist you.
By David A. Arpino 24 Feb, 2021
An overview of Vehicle and Traffic Law 511(1) and how to beat or defend this charge in New York Courts.
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