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.”
