GS LLC v. David Morales Hernandez, Respondent-Tenant. (2026)

The following papers were read and considered on the Petitioner GS White Plains Owner, LLC's motion pursuant to CPLR 5015(a) seeking vacatur of this Court's September 24, 2025 Order dismissing the instant matter:

Petitioner's Notice of Motion to Vacate, pursuant to CPLR 5015, dated December 16, 2025;

Petitioner's Affirmation in Support, dated December 16, 2025; and

Petitioner's Affirmation of Service.

Respondent David Morales Hernandez did not respond to the motion.

On September 24, 2025, this Court dismissed the above-captioned non-payment summary proceeding because, although Respondent was present, Petitioner failed to appear in court to prosecute the matter. Petitioner now invokes CPLR 5015(a) to vacate the dismissal and restore this matter to the calendar. Pursuant to that statute,

The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of: (1) excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry[.]

CPLR 5015(a)(1). Notably, the statute requires that the motion be made "with such notice as the court may direct." Id. Such language has been interpreted by other courts to direct the use of an Order to Show Cause to commence the motion to vacate. See AMK Capital Corp v CIFRE Realty Corp, 212 AD3d 402, 402 (1st Dept 2023) (motion court did not err in denying motion to vacate and directing petitioner to file an order to show cause); Smith v Smith, 291 AD2d 828, 828 (4th Dept 2002)(jurisdiction over defendant was not obtained where petitioner did not commence CPLR 5015(1) motion to vacate by way of an order to show cause); Bank of New York Mellon v Piercey, 30 Misc 3d 1219(A), *3 (Sup Ct Suffolk Co 2019) (requirement to utilize order to show cause is jurisdictional); see also Wallace v Bujanow, 176 AD3d 1307, 1308 (3d Dept 2019)(comparable language in Election Law § 16-116 contemplates an order to show cause and requires petitioner to first obtain directive from the court on how respondent must be notified of the special proceeding); Saad v Saad, 71 AD3d 1116, 1116 (2d Dept 2010) (comparable language in Domestic Relations Law § 244 "implicitly requires that such an application be brought by order to show cause"). As the Practice Commentary to CPLR 5015(a) states, the requirement that the court prescribe the timing and method of service to commence an application to vacate recognizes that circumstances may have changed since the prior judgment or order was rendered, and an ordinary notice of motion may not effectively provide notice to the opposing party. Mark C. Dillon, Prac. Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C5015:2.

Respondent here did not submit a response to the instant motion. Thus, it is unclear whether the notice of motion provided actual notice to Respondent that Petitioner is seeking to vacate the dismissal and restore this matter to the calendar. Under the circumstances, Petitioner did not properly commence the motion to vacate.

Accordingly, Petitioner's motion to vacate the September 24, 2025 dismissal order pursuant to CPLR 5015(a) and restore the petition to the court's calendar is denied without prejudice to renewal as an order to show cause.

THIS DECISION CONSTITUTES THE ORDER OF THE COURT

Dated: January 15, 2026

White Plains, New York

ORDERED:

HON. MARY JO L. BLANCHARD

CITY COURT JUDGE

Mary Jo L. Blanchard, J.