Rivera v. New York City Department of Sanitatio

Judgment, Supreme Court, New York County (Joan B. Lobis, J.), entered June 10, 2014, upon respondents’ purported default, granting the petition brought pursuant to CPLR article 78 to annul respondents’ determination, dated February 14, 2013, which terminated petitioner’s probationary employment as a sanitation worker, and order, same court, Justice and date of entry, which denied respondents’ motion to vacate the default judgment, unanimously reversed, on the law, without costs, the motion to vacate the default judgment granted, the petition denied, and the proceeding dismissed.

CPLR 5015 (a) (1) requires a movant seeking to vacate a default to move within one year of entry of the default and to show a reasonable excuse for the default as well as a meritorious defense (see Youni Gems Corp. v Bassco Creations Inc., 70 AD3d 454 , 455 [1st Dept 2010], lv dismissed 15 NY3d 863 [2010]). Respondents timely moved to vacate the default. It should be noted that petitioner did not oppose the application.

On the merits, respondents cite “law office failure” as a reason for the default. Under certain circumstances, law office failure may provide a reasonable excuse for a default (see e.g. Goodwin v New York City Hous. Auth., 78 AD3d 550 , 551 [1st Dept 2010]). At oral argument, respondents essentially conceded that, in this e-filed case, their office failed to regularly check its email and, as a result, was unaware of the motion court’s order that gave rise to the default. Respondents’ excuse was sufficiently particularized and there is no evidence of wilful or contumacious conduct on their part (see Reyes v New York City Hous. Auth., 236 AD2d 277 , 279 [1st Dept 1997]).

Additionally, respondents have demonstrated the existence of a meritorious defense. Petitioner was a probationary employee who was arrested and charged with DWI while still on probationary status. His commercial driver’s license, a requirement for a sanitation worker, was suspended and then revoked as a result. Several disciplinary complaints were filed as a result of this incident and he was subsequently terminated.

“A probationary employee may be discharged without a hearing or a statement of reasons, in the absence of a demonstration that [his] termination was made in bad faith, for a constitutionally impermissible purpose, or in violation of statutory or decisional law” (Matter of Turner v Horn, 69 AD3d 522 , 522 [1st Dept 2010]). The record before us clearly establishes that there were legitimate reasons for terminating petitioner’s