Matter of Sawwan v Farhoud
Attorneys and Parties
Brief Summary
Trusts and estates; judicial construction of a trust and appellate standards for vacating default/extension under CPLR 2004 [authorizes courts to extend time limits and excuse delay upon good cause, typically requiring a reasonable excuse and a potentially meritorious claim/defense].
The Surrogate's Court granted the respondent's motion to vacate his default and extend time, deeming his answer and cross-petition served.
The order granting the motion to vacate default and extend time under CPLR 2004.
The respondent failed to offer a detailed and credible law office failure explanation; counsel had no reasonable basis to assume a 20-day period to respond to an order to show cause with a noticed return date. Without a reasonable excuse, the court need not consider a potentially meritorious defense.
Background
This CPLR article 77 [procedure for judicial construction and administration of trusts] proceeding concerns who is the proper trustee of the Hiam Farhoud Trust. The original trust instrument named the respondent (Amjad T. Farhoud) as trustee; an amended trust instrument later named the petitioner (Donia Thabit Sawwan). The petitioner alleged that despite the amendment, the respondent continued to hold himself out as trustee, impeding administration. An amended order to show cause set a return date of December 12, 2023. The respondent neither served responsive papers nor appeared on the return date. He later moved to vacate his default and for an extension under CPLR 2004, claiming law office failure from miscalendaring the due date as December 18, 2023 (20 days from November 28) instead of the noticed December 12 return date.
Lower Court Decision
By order dated April 15, 2024, the Surrogate's Court (Kings County) granted the respondent's motion to the extent of deeming his answer and cross-petition served.
Appellate Division Reversal
Reversed, on the law and in the exercise of discretion, with costs. The Appellate Division denied the respondent's motion to vacate default and for an extension of time under CPLR 2004, holding that his law office failure claim was neither detailed nor credible and provided no reasonable basis for believing he had 20 days to respond to an order to show cause with a fixed return date. Because no reasonable excuse was shown, the court did not reach whether the respondent had a potentially meritorious defense.
Legal Significance
Reaffirms that relief under CPLR 2004 requires a detailed, credible showing of a reasonable excuse; generic or conclusory 'law office failure' will not suffice. When an order to show cause sets a specific return date, parties cannot rely on default 20-day assumptions. Absent a reasonable excuse, courts need not assess the merits.
To obtain vacatur of default or an extension under CPLR 2004, provide a specific, credible law office failure explanation tied to the applicable deadline; misreading an order to show cause’s return date is not a reasonable excuse.