Plaintiff herein moves for an order of this Court to deem Defendant to have abandoned its prior application, decided by Hon. Angela G. Iannacci, J.S.C., on December 20, 2016. Defendant has opposed the motion, and the Court has received timely reply. After review and consideration, Plaintiff's motion is granted in accordance with the following.

As a preliminary matter, Plaintiff's moving papers fail to cite any specific statute or Court rule to support the request for relief it has made. While neither 22 NYCRR 202.48 nor CPLR §5513 are exactly on point with the procedural history and relief now sought in this case, both can provide guidance to the instant application. More importantly, with this Court rule and statue in mind, this Court has analyzed Plaintiff's application pursuant to CPLR §5015(a)(3).

In the instant case, Plaintiff obtained a judgment upon Defendant's default in answering the complaint on March 25, 2016. Thereafter, Defendant appears to have filed an order to show cause to vacate said judgment that was granted to the extent stated by Justice Iannacci in her decision and order, in which the matter was set down for a traverse hearing. The decision and order of Justice Iannacci explicitly stated that Defendant was required to file a note of issue and the matter was scheduled in the Calendar Control Part (hereinafter "CCP") of Supreme Court, Nassau County, on January 24, 2017. It appears from the Court's records that the matter was [*2]never calendared in CCP since Defendant never filed the note of issue as directed. The matter did not appear again on a calendar for the Court until Plaintiff filed the within motion in February 2021.

Under CPLR §5015(a)(3), 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 fraud, misrepresentation, or other misconduct of an adverse party. Such a motion to vacate must be made within a reasonable time. Richardson v. Richardson, 309 AD2d 795, 765 NYS2d 388 (2nd Dept. 2003). Broad, unsubstantiated allegations on the part of a party are insufficient to obtain relief under the statute. Aames Capital Corp. v. Davidsohn, 24 AD3d 474, 808 NYS2d 229 (2nd Dept., 2005).

In the instant case, both Plaintiff and Defendant clearly neglected the instant matter since late 2016, waiting over four (4) years before asking the Court to address this matter again. Defendant claims that she was unaware of the decision altogether because she was never served with the decision and notice of entry by Plaintiff. However, the long-standing rule is that the party seeking to limit the time of another to take an appeal must strictly conform to the rules of practice and service of a judgment or order by the prevailing party on a motion is required to start the running of the limitations period. Williams v. Forbes, 157 AD2d 837, 550 NYS2d 903 (2nd Dept., 1990). Thus, since Defendant was the movant on the application and because she would be deemed to be the prevailing party, it was her obligation to serve a copy of the decision and order with notice of entry upon Plaintiff, not the contrariwise. Although neither party can claim responsibility for having served a copy of the decision and order with notice of entry upon its/her opponent, Defendant blatantly failed to satisfy its obligations as directed.

Defendant also claims her failure to comply with the directives of Justice Iannacci are attributable to her counsel being a solo practitioner and the oversight was simply a law office failure. Despite perhaps the obvious lack of resources available to a solo practitioner with limited staff compared to a mid-sized or large firm, Defendant's bald and unsubstantiated assertion of law office failure, as presented in his attorney's affirmation only, is insufficient to qualify as a reasonable excuse for the failure to file the note of issue timely or at all for more than four (4) years. See Mattera v. Capric, 54 AD3d 827, 864 NYS2d 98 (2nd Dept., 2008); see also Baruch v. Nassau County, 134 AD3d 658, 20 NYS3d 425 (2nd Dept., 2015).

Given the foregoing, this Court finds that the misconduct on the part of Defendant by failing to file a note of issue and place the matter on the Court's calendar for a traverse hearing as directed warrants vacatur of the decision and order of Justice Iannacci dated December 20, 2016. The egregiousness of the delay by Defendant coupled with a lack of a reasonable excuse for the asserted law office failure requires a conclusion that Defendant's application was either purposefully abandoned or Defendant attempted to prejudice Plaintiff at a traverse hearing through the passage of more than four (4) years' time. Therefore, the motion by Plaintiff is hereby granted in full, over opposition.

Plaintiff shall file and serve a copy of the within order with notice of entry upon Defendant within thirty (30) days from the date of this order. Any and all stays on Plaintiff's judgment enforcement efforts are hereby lifted forthwith.

This hereby constitutes the Decision and Order of this Court.