Matter of Shau Chung Hu v. Lowbet Realty Corp.
Docket 2021-00435
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- Filed
- Jurisdiction
- New York
- Court
- Appellate Division of the Supreme Court of the State of New York
- Type
- Opinion
- Case type
- Civil
- Disposition
- Affirmed
- Citation
- 2026 NY Slip Op 02659
- Docket
- 2021-00435
Appeal from Supreme Court order denying a motion to vacate a default judgment in a hybrid proceeding and action
Summary
The Appellate Division affirmed a Supreme Court order denying Margaret Liu’s motion to vacate a 2018 default judgment awarding Shau Chung Hu $1,480,636.50 in a hybrid proceeding seeking, among other relief, ownership and rescission relating to Lowbet Realty Corp. The Court held Liu’s CPLR 5015(a)(1) motion was untimely because it was made more than one year after service of the judgment, and that her claimed excuse—lack of personal service of the petition—failed because she had filed a notice of appearance and never challenged jurisdiction. The court also rejected relief under CPLR 317 because Liu had appeared in the action.
Issues Decided
- Whether the appellant's CPLR 5015(a)(1) motion to vacate a default judgment was timely and supported by a reasonable excuse for default
- Whether filing a notice of appearance without timely challenging jurisdiction precludes a claim that the defendant was not personally served
- Whether the appellant was entitled to vacatur of the judgment under CPLR 317 despite having appeared in the action
Court's Reasoning
The court found the 5015(a)(1) motion untimely because it was filed more than one year after the judgment was served with notice of entry, and timeliness is jurisdictional to excusable default relief. The appellant's appearance in the case operated as equivalent to personal service unless she had timely asserted a jurisdictional objection, which she did not, so her lack-of-service claim failed. Because she did not show a reasonable excuse for the default, the court did not need to reach whether she had a potentially meritorious defense, and relief under CPLR 317 was also unavailable given her prior appearance.
Authorities Cited
- CPLR 5015(a)(1)
- CPLR 320(b) / equivalence of notice of appearance to personal service
- Nico v Olajitan229 AD3d 561
- Barnett v Diamond Fin. Co., Inc.202 AD3d 651
- Deutsche Bank Natl. Tr. Co. v Carnevale221 AD3d 963
Parties
- Petitioner
- Shau Chung Hu
- Respondent
- Lowbet Realty Corp.
- Respondent
- Margaret Liu
- Judge
- Lara J. Genovesi, J.P.
- Judge
- Linda Christopher, J.
- Judge
- Lillian Wan, J.
- Judge
- Lourdes M. Ventura, J.
Key Dates
- Decision date
- 2026-04-29
- Original judgment date
- 2018-11-21
- Order denying motion date
- 2020-12-01
- Index/filing year
- 2011-01-01
What You Should Do Next
- 1
Consider further appeal
If the appellant wishes to continue challenging the judgment, she should promptly consult counsel about seeking leave to appeal to the New York Court of Appeals and evaluate procedural and substantive grounds for such leave.
- 2
Enforce or satisfy judgment
The petitioner may pursue collection or enforcement actions on the existing judgment unless the appellant obtains relief; counsel should be consulted to decide appropriate enforcement steps.
- 3
Assess collateral remedies
The appellant should discuss with counsel whether any extraordinary relief (for example, coram nobis or other equitable relief) is available given the procedural posture, and whether any newly discovered facts could support reopening the matter.
Frequently Asked Questions
- What did the court decide?
- The court affirmed the denial of Margaret Liu’s motion to vacate a 2018 default judgment, so the judgment for $1,480,636.50 remains in place against her.
- Why couldn’t Liu vacate the judgment?
- Her motion under CPLR 5015(a)(1) was filed more than one year after the judgment was served, making it untimely, and her claim she was never personally served failed because she previously filed a notice of appearance and did not timely challenge jurisdiction.
- Who is affected by this decision?
- The petitioner, Shau Chung Hu, remains the judgment creditor; Margaret Liu remains liable under the 2018 judgment unless she obtains relief by other means; Lowbet Realty Corp. is the corporate defendant tied to the underlying dispute.
- Can this decision be appealed further?
- Yes, the appellant could seek leave to appeal to the Court of Appeals, but further review is discretionary and would require meeting the higher court's standards for appeal.
The above suggestions and answers are AI-generated for informational purposes only. They may contain errors. NoticeRegistry assumes no responsibility for their accuracy. Consult a qualified attorney before relying on them.
Full Filing Text
Matter of Shau Chung Hu v Lowbet Realty Corp. - 2026 NY Slip Op 02659 Matter of Shau Chung Hu v Lowbet Realty Corp. 2026 NY Slip Op 02659 April 29, 2026 Appellate Division, Second Department In the Matter of Shau Chung Hu, petitioner/ plaintiff-respondent, v Lowbet Realty Corp., et al., respondents/defendants, Margaret Liu, respondent/defendant-appellant. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on April 29, 2026 2021-00435, (Index No. 22533/11) Lara J. Genovesi, J.P. Linda Christopher Lillian Wan Lourdes M. Ventura, JJ. Oliver Zhou, Brooklyn, NY, for respondent/defendant-appellant. Bressler, Amery & Ross, P.C., New York, NY (David H. Pikus of counsel), for petitioner/plaintiff-respondent. DECISION & ORDER In a hybrid proceeding, inter alia, pursuant to Business Corporation Law article 11 and action, among other things, for rescission of the sale of real property, the respondent/defendant Margaret Liu appeals from an order of the Supreme Court, Kings County (Larry D. Martin, J.), dated December 1, 2020. The order denied the motion of the respondent/defendant Margaret Liu pursuant to CPLR 317 and 5015(a)(1) to vacate a judgment of the same court (Sylvia Ash, J.) dated November 21, 2018, which is in favor of the petitioner/plaintiff and against the respondent/defendant Margaret Liu in the sum of $1,480,636.50. ORDERED that the order is affirmed, with costs. Shau Chung Hu (hereinafter the petitioner) commenced this hybrid proceeding and action seeking, inter alia, a declaration that he owns a 75% interest in Lowbet Realty Corp. (hereinafter Lowbet), the sole asset of which was an apartment building located at 973 44th Street in Brooklyn, to wind up Lowbet's affairs, and to rescind the sale of the property predicated on fraud ( see Matter of Shau Chung Hu v Lowbet Realty Corp. , 161 AD3d 986, 987). Margaret Liu (hereinafter the appellant) appeared in this matter and, among other things, opposed the petition/complaint, but subsequently stopped participating in the litigation. Thereafter, a default judgment dated November 21, 2018, was issued in favor of the petitioner and against the appellant in the sum of $1,480,636.50 (hereinafter the 2018 judgment). In June 2020, the appellant moved pursuant to CPLR 317 and 5015(a)(1) to vacate the 2018 judgment. By order dated December 1, 2020, the Supreme Court denied the appellant's motion. This appeal ensued. Generally, a "'defendant seeking to vacate a default pursuant to CPLR 5015(a)(1) must demonstrate a reasonable excuse for the default and a potentially meritorious defense'" ( Nico v Olajitan , 229 AD3d 561, 562, quoting Barnett v Diamond Fin. Co., Inc. , 202 AD3d 651, 652). "The determination of what constitutes a reasonable excuse lies within the Supreme Court's discretion" ( Codrington v Churcher , 209 AD3d 626, 627; see Nico v Olajitan , 229 AD3d at 562). "A motion to vacate a default judgment pursuant to CPLR 5015(a)(1) on the ground of excusable default must be made within one year after service upon the moving party of a copy of the judgment, with notice of its entry" ( Barnett v Diamond Fin. Co., Inc. , 202 AD3d at 652; see CPLR 5015[a][1]). Here, that branch of the appellant's motion which was pursuant to CPLR 5015(a)(1) to vacate the 2018 judgment was untimely, as it was made more than one year after a copy of the 2018 judgment was served upon the appellant with notice of entry ( see Nurhan v Harley , 237 AD3d 728, 731). In any event, the appellant's contention that her default was excused because she was not personally served with the petition/complaint is without merit. The appellant filed a notice of appearance in the hybrid proceeding and action, "which is 'equivalent to personal service of the summons upon [her], unless an objection to jurisdiction under [CPLR 3211(a)(8)] is asserted by motion or in the answer as provided in [CPLR] 3211'" ( Deutsche Bank Natl. Tr. Co. v Carnevale , 221 AD3d 963, 964, quoting CPLR 320[b]; see Yihye v Blumenberg , 260 AD2d 371, 371-372). Here, the appellant failed to dispute jurisdiction prior to filing the instant motion to vacate the 2018 judgment. Since the appellant failed to demonstrate a reasonable excuse for her default, this Court need not consider whether she demonstrated the existence of any potentially meritorious defenses ( see HSBC Bank USA, N.A. v Scivoletti , 212 AD3d 600, 603). Therefore, the Supreme Court properly denied that branch of the appellant's motion which was pursuant to CPLR 5015(a)(1) to vacate the 2018 judgment. Likewise, the appellant was not entitled to relief pursuant to CPLR 317, as the appellant appeared in this hybrid proceeding and action ( see Chondrite Asset Trust v 34 Drive Corp. , 240 AD3d 657, 658; JPMorgan Chase Bank, N.A. v Dewar , 239 AD3d 718, 721). Thus, the Supreme Court properly denied that branch of the appellant's motion which was pursuant to CPLR 317 to vacate the 2018 judgment. The appellant's remaining contentions are either without merit or not properly before this Court. GENOVESI, J.P., CHRISTOPHER, WAN and VENTURA, JJ., concur. ENTER: Darrell M. Joseph