Gurin v. Pogge, 112 A.D.3d 1028 (N.Y. App. Div. 2013). · Go Syfert
Gurin v. Pogge, 112 A.D.3d 1028 (N.Y. App. Div. 2013). Cases Citing This Book View Copy Cite
23 citation events (23 in the last 25 years) across 3 distinct courts.
Treatment trajectory · 2014 → 2026 · click a year to view as-of
2014 2020 2026
Top citers, strongest first. 11 distinct citers. How cited ↗
discussed Cited as authority (rule) U.S. Bank N.A. v. 687 King LLC
N.Y. Sup. Ct., Bronx Cty. · 2024 · confidence medium
Ass'n v Losner , 145 AD3d 935, 937 [2d Dept 2016]; Goldman v Cotter , 10 AD3d 289, 293 [1st Dept 2004]; Gurin v Pogge , 112 AD3d 1028, 1030 [3d Dept 2013]; Bond v Giebel , 101 AD3d 1340, 1343 [3d Dept 2012]; Town of Greenburgh v Schroer , 55 AD2d 602, 602 [2d Dept 1976]; Rawson v Austin , 49 AD2d 803, 803 [4th Dept 1975]).
discussed Cited as authority (rule) Inwald Enterprises, LLC v. Aloha Energy
N.Y. App. Div. · 2017 · confidence medium
Further, “[c]ourts are not limited to vacating a judgment pursuant to the enumerated grounds set forth in CPLR 5015 . . ., as they retain inherent discretionary power to vacate *1011 their own judgments for sufficient reason and in the interests of substantial justice” (Borst v International Paper Co., 121 AD3d 1343, 1348 [2014] [internal quotation marks and citation omitted]; see Hayes v Village of Middleburgh, 140 AD3d at 1362 ; Gurin v Pogge, 112 AD3d 1028, 1030 [2013]; State of New York v Bayramov, 98 AD3d at 811-812 ; Kostun v Gower, 61 AD3d 1307, 1307 [2009]).
discussed Cited as authority (rule) Baptist Health Nursing & Rehabilitation Center, Inc. v. Baxter
N.Y. App. Div. · 2016 · confidence medium
Finally, although we note that defendant’s affidavit submitted in support of her motion is not a model of particularity, keeping in mind that “the quantum of proof needed to prevail on a CPLR 5015 (a) (1) motion is not as great as that required to successfully oppose a motion for summary judgment” (Winney v County of Saratoga, 252 AD2d 882, 884 [1998]), the policy of resolving cases on their merits (State of New York v Bayramov, 98 AD3d 811, 812 [2012]) and taking into account the record as a whole, we find no abuse of discretion by Supreme Court in granting defendant’s motion (see Gur…
discussed Cited as authority (rule) Baptist Health Nursing & Rehabilitation Center, Inc. v. Baxter
N.Y. App. Div. · 2016 · confidence medium
Finally, although we note that defendant’s affidavit submitted in support of her motion is not a model of particularity, keeping in mind that “the quantum of proof needed to prevail on a CPLR 5015 (a) (1) motion is not as great as that required to successfully oppose a motion for summary judgment” (Winney v County of Saratoga, 252 AD2d 882, 884 [1998]), the policy of resolving cases on their merits (State of New York v Bayramov, 98 AD3d 811, 812 [2012]) and taking into account the record as a whole, we find no abuse of discretion by Supreme Court in granting defendant’s motion (see Gur…
examined Cited as authority (rule) Lovelace v. RPM Ecosystems Ithaca, LLC (3×) also: Cited "see"
N.Y. App. Div. · 2015 · confidence medium
In addition to the grounds set forth in CPLR 5015 (a), which are not exclusive, Supreme Court had “inherent discretionary power” to vacate its judgment “for sufficient reason and in the interest [ ] of substantial justice” (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]; accord Gurin v Pogge, 112 AD3d 1028, 1030 [2013]; see Borst v International Paper Co., 121 AD3d 1343, 1349 [2014]; Matter of Culberson, 11 AD3d 859, 861 [2004]). “[T]he decision to vacate a default judgment lies within the discretion of the trial court and should not be disturbed unless it reflects an improvi…
discussed Cited as authority (rule) Doane v. Kiwanis Club of Rotterdam, New York, Inc. (2×) also: Cited "see"
N.Y. App. Div. · 2015 · confidence medium
However, regardless of personal service, a court may vacate a default judgment pursuant to CPLR 5015 (a) (1) where the party seeking vacatur “demonstrate [s] a reasonable excuse for the default and a meritorious defense” (Gurin v Pogge, 112 AD3d 1028, 1029 [2013]; see Wadsworth v Sweet, 106 AD3d 1433, 1434 [2013]; Abel v Estate of Collins, 73 AD3d 1423, 1424 [2010]).
discussed Cited as authority (rule) Doane v. Kiwanis Club of Rotterdam, New York, Inc. (2×) also: Cited "see"
N.Y. App. Div. · 2015 · confidence medium
However, regardless of personal service, a court may vacate a default judgment pursuant to CPLR 5015 (a) (1) where the party seeking vacatur “demonstrate [s] a reasonable excuse for the default and a meritorious defense” (Gurin v Pogge, 112 AD3d 1028, 1029 [2013]; see Wadsworth v Sweet, 106 AD3d 1433, 1434 [2013]; Abel v Estate of Collins, 73 AD3d 1423, 1424 [2010]).
discussed Cited as authority (rule) Whitney Lane Holdings, LLC v. Don Realty, LLC
N.Y. App. Div. · 2015 · confidence medium
Supreme Court did not abuse its discretion in vacating the order, and its decision is also consistent with the preference for resolving cases on the merits (see Gurin v Pogge, 112 AD3d 1028, 1030 [2013]).
discussed Cited as authority (rule) Borst v. International Paper Co.
N.Y. App. Div. · 2014 · confidence medium
Courts are not limited to vacating a judgment pursuant to the enumerated grounds set forth in CPLR 5015, however, as they “retain inherent discretionary power to vacate their own judgments for sufficient reason and in the interests of substantial justice” (Gurin v Pogge, 112 AD3d 1028, 1030 [2013] [internal quotation marks and citations omitted]).
discussed Cited as authority (rule) BorstvInternationalPaperCompany
N.Y. App. Div. · 2014 · confidence medium
Courts are not limited to vacating a judgment pursuant to the enumerated grounds set forth in CPLR 5015, however, as they "retain inherent discretionary power to vacate their own judgments for sufficient reason and in the interests of substantial justice" (Gurin v Pogge, 112 AD3d 1028, 1030 [2013] [internal quotation marks and citations omitted]).
discussed Cited as authority (rule) Borst v. International Paper Co.
N.Y. App. Div. · 2014 · confidence medium
Courts are not limited to vacating a judgment pursuant to the enumerated grounds set forth in CPLR 5015, however, as they “retain inherent discretionary power to vacate their own judgments for sufficient reason and in the interests of substantial justice” (Gurin v Pogge, 112 AD3d 1028, 1030 [2013] [internal quotation marks and citations omitted]).
Retrieving the full opinion text from the archive…
Marec Gurin
v.
Karl Pogge
Appellate Division of the Supreme Court of the State of New York.
Dec 5, 2013.
112 A.D.3d 1028
Spain.
Cited by 13 opinions  |  Published
Spain, J.

Appeal from an order of the Supreme Court (Lynch, J.), entered August 13, 2012 in Albany County, which partially granted defendants’ motion to vacate a default judgment.

In late 2007, defendant Karl Pogge purchased a dental practice and its assets, leases and equipment from plaintiffs Marec Gurin and Maria Gurin. In addition to an agreement for sale, Pogge and the Gurins entered into an indemnification[*1029] agreement. Pogge operated the dental business for several months, but then fell behind on rent and equipment payments. The equipment and real estate lessors sued the Gurins and their company, plaintiff Marquee Dental Management, LLC, for amounts owed, and plaintiffs paid out over $150,000 to settle those claims and for counsel fees.

In June 2009, plaintiffs commenced this action against Pogge and defendant Marque Management, LLC seeking indemnification based upon the indemnification agreement. After defendants failed to appear, plaintiffs obtained a default judgment in June 2010 pursuant to CPLR 3215. Following an inquest at which defendants also did not appear, a judgment was entered against them in the amount of $164,195.81.

In November 2011, defendants moved to vacate the default judgment, putting in dispute the contents of the indemnification agreement that Pogge signed. In an affidavit in support of defendants’ motion to vacate, Pogge asserted that he knowingly defaulted because the indemnification agreement he signed did not contain a fourth handwritten provision that would hold him personally responsible for plaintiffs’ losses. Defendants argued that the indemnification agreement that Pogge signed with plaintiffs contained only three typewritten provisions and no fourth handwritten provision. In opposition to defendants’ motion, plaintiffs asserted that the parties had, in contrast, entered into the indemnification agreement that contained three typewritten provisions as well as the handwritten provision apparently* requiring defendants, including Pogge individually, to indemnify plaintiffs “from any cost and expense, including reasonable attorney’s fees and litigation expenses, loan payments, collection costs and all other monies expended.” The authenticity of the handwritten provision is at the center of the parties’ dispute.

Supreme Court declined to vacate the default judgment pursuant to CPLR 5015 (a) (1), finding that defendants did not demonstrate a reasonable excuse for their default. Instead, the court vacated the judgment against Pogge individually “for sufficient reason and in the interests of substantial justice.” Plaintiffs now appeal.

In order to obtain vacatur of a default judgment under CPLR 5015 (a) (1), a party must demonstrate a reasonable excuse for the default and a meritorious defense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Wade v [*1030] Village of Whitehall, 46 AD3d 1302, 1303 [2007]). However, the grounds set forth in CPLR 5015 are not exclusive, and courts retain “inherent discretionary power” to vacate their own judgments “for sufficient reason and in the interests of substantial justice” (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]; Boyd v Town of N. Elba, 28 AD3d 929, 931 [2006], lv dismissed 7 NY3d 783 [2006]; Matter of Culberson, 11 AD3d 859, 861 [2004]). Notably, the decision to vacate “a default judgment lies within the discretion of the trial court . . . [and] should not be disturbed unless it reflects an ‘improvident exercise of discretion’ ” (Chase Manhattan Automotive Fin. Corp. v Allstate Ins. Co., 272 AD2d 772, 773 [2000], quoting Lucas v United Helpers Cedars Nursing Home, 239 AD2d 853, 853 [1997]).

Here, Supreme Court vacated the default judgment against Pogge individually in order to afford him the opportunity to litigate, on the merits, a material question as to the factual basis for the judgment against him, i.e., the authenticity of a clause handwritten onto the otherwise typewritten indemnification agreement. Pogge and the attorney who represented him on this matter averred that he never signed any document with plaintiffs that included handwritten additions, nor consented to them. In light of the court’s finding that this raised “significant concerns with regard to the factual basis for and validity of the judgment against [Pogge] personally,” and in recognition of the strong policy preference for resolving issues on the merits (see Kostun v Gower, 61 AD3d 1307, 1308 [2009]; Wade v Village of Whitehall, 46 AD3d at 1303), we cannot conclude that the decision to vacate the default judgment against Pogge individually was an abuse of discretion.

Stein, J.P, McCarthy and Garry, JJ., concur. Ordered that the order is affirmed, with costs.

The bottom part of the handwritten provision of the indemnification agreement contained in the record on appeal is cut off. Consequently, the exact wording of that provision is not entirely clear and is not decided herein.