Key Takeaway
New York appellate court case rejecting law office failure excuse for default, showing pattern of persistent inaction and willful neglect by defense counsel.
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 ), 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, ), “dilatory behavior” (Perez v. New York City Hous. Auth., 47 AD3d 505, 506 ) or “willful default and neglect” (Santiago v. N.Y.C. Health & Hosps. Corp., 10 AD3d 393, 394 ). 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 ; CPLR 2005).”
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