NATIONSTAR MORTGAGE LLC v. Adam Plotch, Defendant–Appellant. (2026)

Order, Supreme Court, Bronx County (Naita A. Semaj, J.), entered on or about April 11, 2025, which denied defendant Adam Plotch's motion under CPLR 5015(a) to vacate an order, same court (Doris M. Gonzalez, J.), entered on or about January 16, 2019, which vacated the dismissal of the action under 22 NYCRR 202.27 and granted plaintiff's motion for summary judgment and an order of reference, unanimously affirmed, with costs.

The motion court providently denied defendant's motion to vacate the January 16, 2019 order.  In the January 19, 2019 order, the court vacated its October 15, 2018 administrative dismissal of the action under 22 NYCRR 202.27 and granted plaintiff's motion for summary judgment and an order of reference.  Contrary to defendant's contention, the court's vacatur of the court's October 15, 2018 administrative dismissal order was within its inherent powers.

Defendant acknowledges that the October 15, 2018 dismissal order was the result of two different judges having been “assigned to the case simultaneously, resulting in inconsistent rulings” while plaintiff's summary judgment motion was stayed at defendant's request.  Defendant also does not dispute that the parties appeared for oral argument on defendant's motion for a stay on the same day a conference was scheduled before a different judge.  The motion court therefore did not abuse its authority in rejecting defendant's reliance on the administrative error to gain a litigation advantage.

There is no basis, under the CPLR or otherwise, to disturb this result based on defendant's objection to the court's election to allow plaintiff to proceed by letter motion.  There is no per se rule against a request for relief being made pursuant to a letter motion so long as a there is notice, an opportunity to be heard, and a proper evidentiary showing (see Osowski v. AMEC Constr.  Mgt., Inc., 69 AD3d 99, 107 [1st Dept 2009];  cf.  Wachovia Mtge., FSB v. Josef, 137 AD3d 1012, 1014 [2d Dept 2016] ).  Thus, while a “motion to vacate a dismissal for failure to appear at a scheduled court conference (22 NYCRR 202.27) must be supported by a showing of reasonable excuse for the failure to attend the conference and a meritorious cause of action” (Diaz v. Perlson, 168 AD3d 463, 463 [1st Dept 2019] [internal quotation marks omitted] ), the motion court providently found that plaintiff established those elements from the face of the record and in its letter motion.  Defendant does not deny receiving the letter motion, but nevertheless failed to oppose plaintiff's request for vacatur.  Accordingly, defendant's motion to vacate the January 16, 2019 order under CPLR 5015(a)(4) for lack of jurisdiction was providently denied.

With respect to his arguments under CPLR 5015(a)(1), the motion court properly determined that defendant failed to present a reasonable excuse for his failure to oppose plaintiff's summary judgment motion after the interim stays were lifted by the court's October 24, 2018 order.  Even assuming that defendant opted to rely on the October 15, 2018 administrative dismissal order, the record reflects that defendant took no steps to reconcile the purported administrative dismissal with the subsequent October 24, 2018 order, in which the court denied defendant's motion to preclude plaintiff from moving for summary judgment and lifted all stays.  The motion court properly determined that electing to do nothing in those circumstances did not constitute reasonable conduct.

The motion court correctly rejected defendant's excuse for failing to oppose plaintiff's summary judgment motion, thus we need not address whether defendant proffered a meritorious defense to the action (see Matter of Tri–State Consumer Ins. Co. v Hereford Ins. Co., 167 AD3d 416, 417 [1st Dept 2018] ).

We have considered defendant's remaining contentions and find them unavailing.