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More excusable law office failureNovember 30, 2010

I usually do not post too heavily involving issues of vacatur of defaults via law office failure.  Yet, the last few no-fault cases I have seen involving this issue have me wondering whether there is a manifest double standard involving the vacatur of defaults in PIP litigation.  Here is the latest law office failure case from the First Department that was excusable.

Tsioumas v Time Out Health & Fitness, 2010 NY Slip Op 08804 (1st Dept. 2010)

“Plaintiff demonstrated an intent not to abandon the action by completing initial discovery, attempting to restore the action within nine months of its being marked off the calendar, appearing at a status conference within one year of the action being marked off, stating at the status conference a need to assemble funds for a medical consult and surgery, and appearing at the next scheduled court conference held two months thereafter. In any event, once the complaint was dismissed at the February 3, 2009 court conference, plaintiff expeditiously moved to restore the action after it had been marked off the calendar. Plaintiff’s excuse for the delay in making a formal motion to restore the action was that a paralegal in plaintiff’s counsel’s office allegedly saw the case as “active” on the court’s Web site, thereby leading counsel to believe that no formal motion to restore was needed. Such law office failure may constitute a reasonable excuse for delay in moving to restore an action so as to justify the IAS court’s favorable exercise of discretion here (see e.g. Kaufman v Bauer, 36 AD3d 481 [2007]). The court’s decision to restore the matter to the calendar was consistent with the strong judicial policy  that favors determination of actions on the merits (see Matter of Lancer Ins. Co. v Rovira, 45 AD3d 417 [2007]).

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