(E.D.N.Y.).
I respectfully dissent,
I have no quarrel with the majority’s analysis of this Circuit’s precedents with respect to the procedure to be followed when a motion for summary judgment is unopposed, nor with its analysis of the distinction between summary judgment and default judgment. Nonetheless, based upon the facts of this case, the judgment should be affirmed, as more akin to a default judgment than a summary judgment.
We do not know from the record whether or not, as was assumed in Amaker v. Foley, 274 F.3d 677 (2d Cir.2001), the district judge, in granting summary judgment, relied solely on the defendant’s failure to respond to the motion. However, even if he did, I would affirm. The defendant in this case was the subject of a default judgment, until, acting through counsel, he invoked the district judge’s discretion and obtained a reopening of the default. He answered the complaint, but then dismissed his attorney, who was allowed to withdraw. Defendant, proceeding pro se, then once again failed to respond, this time to the summary judgment motion, and judgment was entered against him. He therefore should not get the benefit of the summary judgment procedure rather than the default judgment procedure. Had defendant not moved to vacate the default judgment, or had the trial court not granted the motion, the default judgment standards, set forth in the majority opinion, would have been applicable.
Defendants should not be allowed to avoid the less stringent standards applicable to a default judgment by failing to respond to a summary judgment motion *248after a default judgment is vacated. Here, by the relatively simple expedient of obtaining an order vacating the default judgment, defendant put additional burdens on a busy trial court, and significant litigation burdens on plaintiff, including conducting discovery and preparing summary judgment papers, all the while delaying permanent relief. Having failed to respond to the summary judgment motion, there is no sound reason for him to be treated other than as a defaulting defendant.
Defendant, while pro se, is not unsophisticated. He did not raise the issue which forms the basis for the majority’s reversal, and the equities do not favor him. Even on the appeal, he has offered no grounds for concluding that either as a factual or legal matter the judgment against him was ill-founded. Under all of these circumstances, I would affirm the judgment.