This one gave me pause

Matter of MAPFRE Ins. Co. of NY v Callahan,  2018 NY Slip Op 06016 (2d Dept 2018)


“The Supreme Court ordered a framed-issue hearing to resolve the various issues raised by MAPFRE. Following a lengthy period of delay during which numerous adjournments of the hearing were granted, the matter was marked final and scheduled to be heard on May 19, 2016. MAPFRE’s counsel and a witness for MAPFRE appeared for the hearing. Callahan failed to appear on that date, despite having been subpoenaed. Moreover, although her attorney answered the calendar call that morning and indicated his readiness to proceed, he did not appear when the court convened the hearing less than two hours later, despite his receipt of text messages from opposing counsel requesting his presence, and he did not advise the court in advance that he might be delayed due to appearances on other matters. The court granted the petition on Callahan’s default and subsequently denied her motion pursuant to CPLR 5015(a)(1) to vacate the default.”

This is the decision denying vacatur of the order.  Maybe I am getting too soft in my second decade of practicing because I would probably have not taken the default or consented to vacate the order if the facts as presented by Respondent in his order to show cause are true.  But I cannot necessarily fault Petitioner’s counsel since he was sitting there for two hours twitting his thumbs after being sent out, and he was probably pissed as he had other things to do that day.  It is a judgment call and, again, I hate to see other attorneys get jammed up for stuff like this.

For what its worth, I think my second employer would have fired me if I did not take the default in this situation.  Thus,  I cannot even pretend to tell you the reader what the right answer is in this case.

But let this be a lesson and I am taking note here that if you have to run around Court or various courts (heaven knows we all do) and you have a hearing, tell the part clerk you have three other things.  That looks to be the difference in this case as to why the OSC was not grated.


Law Office failure established through associate attorney deception

Scholem v Acadia Realty L.P., 2016 NY Slip Op 07943 (2d Dept. 2016)

“Here, in opposition to the plaintiff’s motion, inter alia, to enforce the conditional order and strike the defendant’s answer, the defendant submitted affidavits which, taken together, set forth a detailed and credible explanation for the failure to produce the witnesses for deposition (see Blake v United States of Am., 109 AD3d 504, 505), based on acts of misconduct and deception on the part of the associate attorney handling the matter for the defendant’s attorney”

The famous line before the associate attorney leaves: “Don’t worry, everything is taken care of.”  Well – reality is a bummer sometimes,

Rocket docket at the First Department

Global Liberty v. Coastal Anesthesia

Another attempt is being made to demonstrate that “rocket docket” preclusion is subject to an interest of justice review and that CPLR 2005 applies in the correct situation.

Procedurally, the submissions were 5-days late and a colorable showing of law office failure was presented in the moving papers.  In my eyes, if this case does not call for the tempering of a hard-line standard, you might as well throw the baby out with the bath water.

The lower arbitrator – a rocket docket enthusiast – precluded the submissions.  I have usually kept my views of the rocket docket club of arbitrators off this blog, and I will continue that policy.  Opportunely, the regulation really needs to be amended to incorporate a prejudice or substantial justice standard prior to disallowing a party the opportunity to plead its case.  Parenthetically, Countriwide would not get much sympathy under my proposed rule change since mercy is not granted towards the insolent few.

The case is up for submission on 11/25/16.  If we win, then some sanity will reign.   Should we lose, then we may be looking to DFS to amend the rule, lest DFS looks like they just do not get it.

My prediction.  Assuming the Court follows  Matter of Unitrin Advantage Ins. Co. Kemper A. Unitrin Bus. v Professional Health Radiology, 2016 NY Slip Op 06767 (1st Dept. 2016), which held that consideration of evidence was not proper:”based on the multiple errors committed by Unitrin, it failed to establish inadvertent law office error, or that the cases should be remanded, in the interest of justice, for a new arbitration hearing”, the appeal has a good shot at success.

Just note the one mistake that was made on Heatlhmakers, i.e., the failure to include an explanation for the slightly late evidence, was herein not repeated.  Fool me once…  you know the bit.  We cannot say the same about “the partner affirmation”

A really bad default

This case gives a nice list of defaults that are just not excusable.  The problem I have is that behavior that does not fall anywhere within this paradigm is often not excusable, frequently in the Second Department, which is more stringent on default vacaturs than the Fist Department.

Imovegreen, LLC v. Frantic, LLC, No. 1195N, 2016 WL 2904594, at *1 (N.Y. App. Div. May 19, 2016)

“Although “certain law office failures may constitute reasonable excuses” (Mutual Mar. Off., Inc. v. Joy Constr. Corp., 39 AD3d 417, 419 [1st Dept 2007] ), a claim of law office failure should be rejected if the conduct is part of a pattern of “persistent and willful inaction” (Youni Gems Corp. v. Bassco Creations Inc., 70 AD3d 454, 455, [1st Dept 2010] ), “dilatory behavior” (Perez v. New York City Hous. Auth., 47 AD3d 505, 506 [1st Dept 2008] ) or “willful default and neglect” (Santiago v. N.Y.C. Health & Hosps. Corp., 10 AD3d 393, 394 [2d Dept 2004] ). This is such a case. Defendants’ alleged law office failure is not excusable, as the record shows that defense counsel was fully aware of his obligations and intentionally and repeatedly failed to attend to them (Forum Ins. Co. v. Judd, 191 A.D.2d 230, 230 [1st Dept 1993]; CPLR 2005).”

Excusable neglect not acceptable

A.B. Med., PLLC v Cna Ins. Co., 2015 NY Slip Op 50199(U)(App. Term 2d Dept. 2015)

“Here, plaintiff failed to demonstrate that it had a reasonable excuse for failing to timely submit written opposition to defendant’s prior motion, pursuant to the parties’ stipulation. In support of plaintiff’s motion to vacate the default order, plaintiff’s attorney alleged that her late submission of an affirmation in opposition to defendant’s motion for summary judgment was the result of her heavy workload. Her explanation to justify the default amounted to nothing more than mere neglect, which is not accepted as an excusable default (see Strunk v Revenge Cab Corp., 98 AD3d 1029 [2012]; State Farm Mut. Auto. Ins. Co. v Preferred Trucking Serv. Corp., 42 Misc 3d 88 [App Term, 2d, 11th & 13th Jud Dists 2013]). Moreover, plaintiff’s attorney offered no reason for waiting almost 10 months to move to vacate the default order

Failure to stipulate to an adjournment can be law office failure – sufficient to vacate a summary judgment loss on default

Santiago v Valentin, 2015 NY Slip Op 01159 (1st Dept. 2015)

“Plaintiff provided an attorney’s affirmation describing that the failure to submit opposition was due to a delay in receiving an updated medical report from plaintiff’s treating physician.

Further, plaintiff explained that after defendant denied his third request to stipulate to an adjournment, he believed the only recourse was to wait for a decision and order from the court, and thereafter, make a motion to vacate the default judgment. As such, there is no evidence in the record that plaintiff’s default was due to any deliberate, willful, or contumacious conduct.”

Valid excuse for law Office Failure

Madonna Mgt. Servs., Inc. v Naghavi, 2014 NY Slip Op 08965 (2d Dept. 2014)

“Here, the defendants have provided a “detailed and credible” explanation for their failure to appear at the scheduled conference (Henry v Kuveke, 9 AD3d 476, 479; see CPLR 2005; Gironda v Katzen, 19 AD3d 644, 645). Miscommunications that occurred between the defendants, the defendants’ previous counsel, and the defendants’ newly retained attorney constituted a law office failure.”

Default granted where answer is 6 months later

Rosenblatt v New York City Tr. Auth., 2014 NY Slip Op 07575  (1st Dept. 2014)

“Defendants demonstrated an excuse of law office failure through the assigned attorney’s detailed affirmation setting forth the series of mistakes that resulted in the granting of plaintiff’s motion for entry of a default judgment, just after defendants had served an answer, which was about six months late

This case is another illustration of the ease that default judgments can be vacated in the First Department, as opposed to the Second Department, where the Courts take a more stern stance towards vacating default judgments.

Default not granted and a questionable appeal

Metropolitan Prop. & Cas. Ins. Co. v Braun, 2014 NY Slip Op 06283 (1st Dept. 2014)

“The motion court providently exercised it discretion in granting defendants’ cross motion for an extension of time to interpose an answer. Under the circumstances, although defendants’ assertion of law office failure “is not particularly compelling, it constitutes good cause for the delay” (Lamar v City of New York, 68 AD3d 449, 449 [1st Dept 2009] [internal quotation marks omitted]). There is no evidence that plaintiffs have been prejudiced, and the record shows that plaintiffs had previously agreed to an extension of time for defendants to answer. Contrary to plaintiffs’ contentions, a meritorious defense was not required for defendants to be granted an extension of time to answer (see Interboro Ins. Co. v Perez, 112 AD3d 483 [1st Dept 2013]; Cirillo v Macy’s, Inc., 61 AD3d 538, 540 [1st Dept 2009]).”

I read this and I asked myself why Plaintiff did not accept the answer and just move for summary judgment?  Interboro/Perez (my contribution) and the litany of other cases shows that a less than a compelling excuse is all that is necessary to defeat a motion for leave to enter a default.  Seems like a suicide march, and for no reason.

Service of papers in accordance with the CPLR should be considered even if not in accordance with the Kings County Civil Court briefing schedules

D & r Med. Supply, Inc. v American Tr. Ins. Co., 2012 NY Slip Op 50785(U)(App. Term 2d Dept. 2012).

“In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was granted on default inasmuch as the court refused to consider defendant’s opposing papers as well as its cross motion for summary judgment dismissing the complaint because, while the cross motion and opposing papers had been served 21 days before the return date of the motion, they were untimely pursuant to a briefing schedule set by the Civil Court. Defendant appeals from an order entered July 28, 2010 which denied its motion to vacate the default order entered December 8, 2009 and, upon vacatur, for a new determination of plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment.”

“In the instant case, defendant proffered a reasonable excuse for its failure to timely submit its opposing papers and cross motion, and also set forth a meritorious defense to the action. Accordingly, the judgment is reversed, the order entered July 28, 2010 is vacated, defendant’s motion to vacate the order entered December 8, 2009, which had granted, as unopposed, plaintiff’s motion for summary judgment and had refused to consider, on the ground of untimeliness, defendant’s cross motion for summary judgment dismissing the complaint, and, upon such vacatur, for a new determination of plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint is granted, and plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint are remitted to the Civil Court for a new determination.”

It is a logical result when you think about it.  As long as your follow the CPLR and there is no prejudice, where is the harm?