Linden Equip., Inc. v Praetorian Ins. Co., 2015 NY Slip Op 51545(U)(App. Term 1st Dept. 2015)
“Although plaintiff failed to move for entry of a default judgment within one year (see CPLR 3215[a]), the court exercised its discretion providently by denying defendant’s motion to dismiss the complaint as abandoned pursuant to CPLR 3215(c). Plaintiff demonstrated a meritorious cause of action for assigned first-party no-fault benefits, which defendant does not dispute and, although the particular law office failure excuse proffered by plaintiff is less than compelling, there is no indication in the record that defendant was in any way prejudiced by plaintiff’s delay”
This does not occur often: A failure to enter a default is excused. Yet, as readers of this blog over the last many years will know, defaults are harder to come by in the First Department as opposed to the Second Department. The hurdles you leap through to vacate a default in the Second Department are half as high in Manhattan or Bronx. In my estimation, this is a Uniform Court System that is anything but uniform. Now that I am off topic, did anyone read the recent report on attorney discipline in this State? Assume the offense of misappropriation of escrow funds with no prior disciplinary history. Upstate: Suspension that is suspended pending some type of counseling. Second Department: 3 years suspension. First Department: Disbarment (7 year suspension). Perhaps a uniform court system that uniformly decides issues, i.e., attorney discipline, vacatur of defaults, Unitrin issues really needs to be looked at.
My personal opinion: We should not be as strict in opening defaults. Matters really should be heard on the merits unless someone willfully abandons the case.
