No Fault Defender – A Defense Attorney's Perspective on New York No-Fault Law
Archive for the ‘Law Office Failure’ Category
Unsubstantiated averments of law office failure will not open a default in the Second Department
In Chechen v Spencer, 2009 NY Slip Op 09177 (2d Dept. 2009), law office failure (again) was discussed:
“After the plaintiff failed to appear at a scheduled status conference on November 7, 2007, the court scheduled another status conference to be held on December 11, 2007. The action was dismissed when the plaintiff failed to appear at the December 11, 2007, status conference (see 22 NYCRR 202.27[b]). To be relieved of the default in appearing at that conference, the plaintiff was required to show both a reasonable excuse for the default and the existence of a meritorious cause of action (see CPLR 5015[a][1]; Barnave v United Ambulette, Inc., 66 AD3d 620; Brownfield v Ferris, 49 AD3d 790, 791; Zeltser v Sacerdote, 24 AD3d 541, 542). The plaintiff’s counsel’s excuse of law office failure was vague and unsubstantiated and, thus, did not constitute a reasonable excuse for the default.”
Compare this to the First Department’s view on what is sufficient to demonstrate law office failure in order to show a reasonable excuse to open a default. See, Lamar v City of New York, 2009 NY Slip Op 08974 (1st Dept. 2009)
Generalized averment of law office failure is sufficient to open a default
The Appellate Division, First Department, in Lamar v City of New York, 2009 NY Slip Op 08974 (1st Dept. 2009), said this in a four sentence opinion:
“While the City’s generalized assertion of law office failure as the excuse for its delay is not particularly compelling, it constitutes “good cause” for the delay (see Spira v New York City Tr. Auth., 49 AD3d 478 [2008]).”
What do you think would be the outcome of this case if this were adjudicated in the Second Department?
If you detail a procedure, you must make sure you demonstrate that it was followed
When vacating a default in the Second Department based upon law office failure, the proponent of the motion must produce admissible evidence explaining the nature and extent of the law office failure. What is important to appreciate is that if a procedure is in place to assure that a default will not occur, then it must be explained why the procedure was not followed. This is what the Appellate Term stated in A.B. Med. Servs., PLLC v GLI Corporate Risk Solutions, Inc., 2009 NY Slip Op 52322(U)(App. Term 2d Dept. 2009):
“Plaintiffs’ allegation of law office failure is factually insufficient (see Robinson v New York City Tr. Auth., 203 AD2d 351 [1994]), in that they failed to explain whether the normal two-part procedure for assigning a per diem attorney to cover a court appearance, as outlined in their submission to the court, was followed in its entirety. Accordingly, plaintiffs’ motion to vacate the prior order was properly denied. in a particular case.”
