More excusable law office failure

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]).

This was excusable law office failure

Goodwin v New York City Hous. Auth., 2010 NY Slip Op 08614 (1st Dept. 2010)

“Order…denied plaintiffs’ motion to vacate a prior order that had dismissed the action pursuant to 22 NYCRR 202.27(b) for their attorney’s failure to appear at a preliminary conference, unanimously reversed, on the law, without costs, the motion granted, and the complaint reinstated.”

“Law office failure may constitute a reasonable excuse for a default (see Dokmecian v ABN AMRO N. Am., 304 AD2d 445 [2003] [counsel inadvertently scheduled the wrong date for the preliminary conference]). Here, under the circumstances (including counsel’s stressful preoccupation with the health of a close family member), a one-time default at a preliminary [*2]conference that plaintiffs had requested after remand from this Court should not result in dismissal of the action (CPLR 2005; see Mediavilla v Gurman, 272 AD2d 146, 148 [2000]), especially in light of the strong public policy in this State for disposing of cases on their merits (see Hyde Park Motor Co., Inc. v Sucato, 24 AD3d 724 [2005]).

This court is all too familiar with this case, having reversed Supreme Court’s wrongful dismissal of the complaint once before for labeling a correction to the original notice of claim as a “second” notice (42 AD3d at 66). The lawsuit stemming from this eight-year-old accident has now survived two mistaken dismissals. No discovery has taken place. It is time for discovery to commence and finish expeditiously so that plaintiffs’ claims may be addressed on their merits.

The First Department seems to understand the Legislative intent behind CPLR 2005.

Is it really the public policy of this state to adjudicate cases on their merits? Ask the Appellate Term, Second Department.

Case #1:

Viviane Etienne Med. Care, P.C. v Alea N. Am. Ins. Co., 2010 NY Slip Op 52011(U)(App. Term 2d Dept. 2010)

“The administrator finally obtained the claim file on or about August 1, 2007 and only then assigned counsel, who served plaintiff with an answer on August 15, 2007. Based on the above facts, defendant failed to proffer a reasonable excuse for its default. A party in jeopardy of defaulting for nonappearance in an action may request an extension of time to file its answer upon good cause shown (see CPLR 2004). Failure to move pursuant to CPLR 2004 for an extension of time to file an answer may eviscerate the grounds for a reasonable excuse (cf. Builders Mechanic Co. v Claiborne, 277 AD2d 193 [2000]; Weiss v Kahan, 209 AD2d 611, 612 [1994]). Here, defendant was served with the summons and complaint on January 15, 2007 and its third-party claims administrator received a copy of the summons and complaint on January 26, 2007. Thereafter, both defendant and its third-party [*2]claims administrator knowingly failed to take any action with respect to this lawsuit for approximately eight months. In the interim, plaintiff applied for a default judgment in March 2007, and a default judgment was entered on September 6, 2007″

The Appellate Division, Second Department a few years ago held in a 3-1 opinion that the concept of law office failure should be extended to insurance company delay.  I guess this panel of the Appellate Term disagrees with that assertion.  What I find interesting is that the legislature created CPLR 2005 to overturn Barasch v. Micucci, 49 NY2d 594 (1980).

Astoria Wellness Med., P.C. v State Farm Mut. Auto Ins. Co., 2010 NY Slip Op 52008(U)(App. Term 2d Dept. 2010)

“Defendant’s excuse of law office failure was not reasonable under the circumstances presented. Defendant failed to adequately explain why it did not re-file its opposition papers in the correct Civil Court part after the court clerk had notified defendant of its filing error and had provided it with instructions on [*2]how to properly re-file. Accordingly, the order of the Civil Court is affirmed.”

The dissent explains what happened in further detail:

“Contrary to the majority, I find that defendant has sufficiently established an excusable default and that there was no prejudice to plaintiff in any sense of the word. Defendant had agreed with plaintiff and the Civil Court to both serve and file a copy of its opposition papers by a certain date.

Although defendant had agreed to submit its opposition by a certain date, its opposition papers were not served and filed until after the agreed-upon date, which was nevertheless still prior to the return date of the motion. There was more than ample time for plaintiff to reply to those opposing papers prior to the return date if plaintiff so chose. Plaintiff did not.

I find that defendant’s failure to submit the opposition papers by the agreed-upon date was de minimis and without any prejudice to plaintiff. It also appears that defendant mistakenly filed the court’s copy in the same calendar part as plaintiff’s motion. I do not find this ministerial error to be grievous fault, and it should not be treated so severely.”

What is interesting about this case – besides it being mine – is that every court except Brooklyn requires the cross motion to follow the main motion.  I filed a cross-motion seeking discovery based relief for the reasons seen in Justice Golia’s opinion.  This was filed in Part 41 because the main motion was filed in that part.

The clerk apparently rejected the motion based on the Brooklyn rule.  The appearing attorney brought the cross-motion/opposition into court and sought to have it treated as opposition to Plaintiff’s motion.  The court for some reason rejected it and granted Plaintiff’s motion.  The rest, as they say, is history.

It is hard to believe that this was not excusable law office failure, but better minds believe otherwise.

The proper mecanism to vacate a motion for summary judgment granted on default is through 5015(a)

Two points of law.

First, late answering papers should be accepted if there is a reasonable basis for their untimeliness.  Absent papers being served a week or less before the return date, it seems unfortunate that attorneys wish to play the “late opp we will not accept game.”  I keep a list of people who do this to me, along with a stack of proposed EBT and SJ motions.

Second, a motion to vacate an order granting an award of summary judgment on default should be addressed through a CPLR 5015(a) motion.  Be aware, however, that there is First Department precedent that suggests that the proper mechanism to address this type of default is through a motion to renew.

Friendly Physician, P.C. v GEICO Ins. Co., 2010 NY Slip Op 51772(U)(App. Term 2d Dept. 2010).

Now the highlights of this case..

“In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. When defendant attempted to file opposing papers almost a month after their stipulated due date, the Civil Court rejected defendant’s papers and, by order dated October 15, 2007 (Robin D. Garson, J.), granted plaintiff’s motion on default. In November 2007, defendant moved to vacate the October 15, 2007 order pursuant to CPLR 5015 (a) (1). By order entered November 19, 2007 (Peter Paul Sweeney, J.), the Civil Court denied defendant’s motion without prejudice, stating that “[d]efendant is granted leave to submit a motion to reargue or renew before Judge Garson, who initially granted the judgment in dispute.” The instant appeal by defendant ensued.”

“The affirmations of the attorneys employed by the law firm representing defendant satisfied these criteria.”

“We note that, contrary to the Civil Court’s direction, relief from an order granted upon default should be sought by means of a motion pursuant to CPLR 5015, not by a motion to renew or reargue”

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.”