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,
One Response
So willful failure is now excusable assuming the law office can pin the failure on an associate attorney.
The necessary corollary is that non willful failure is excusable assuming one can simply pin the negligence to an identified individual, no matter the circumstances– i.e. inexplicable delays in moving, etc.
This further supports my view that virtually any default can now be overcome in NY State assuming the moving party frames the affidavits properly.
If anyone is losing these things, it’s their own goddamn fault.