Key Takeaway
Second Department vacates default judgment in GEICO v Avenue C Med case, granting defendants' motion based on law office failure and miscommunication between counsel.
Government Employees Ins. Co. v Avenue C Med., P.C., 2018 NY Slip Op 08010 (2d Dept. 2018)
(1) “The defendants Salehin Sayeedus, also known as Salehin Sayeedus Suman, Jose Carmen Ma Donna Gloria, also known as Carmen Maria Donna Jose, and Zhi-Yuan Zhong (hereinafter collectively the defaulting defendants) defaulted in appearing and, in April 2014, the plaintiffs filed a motion for leave to enter a default judgment against the defaulting defendants. The motion was unopposed, and was granted on July 23, 2014. In October 2014, the defaulting defendants moved to vacate their default and to compel acceptance of their late answers, asserting that their default was due to law office failure. In support of their motion, the defaulting defendants submitted affidavits from the defendants’ former and present counsel, in which counsel stated that the failure to serve timely answers on behalf of the [*2]defaulting defendants was due to a miscommunication between the defendants’ former and present counsel, upon the transfer of the defendants’ case to their present counsel, regarding the nature of the representation. The Supreme Court denied the motion, and the defaulting defendants appeal.”
(2) “Here, the defaulting defendants demonstrated a reasonable excuse, based upon law office failure arising from a miscommunication between their former counsel and their present counsel, for their default in answering the complaint or otherwise appearing in the action”
(3) “The defaulting defendants submitted affidavits in support of their motion describing their office services and billing practices, in which they stated, among other things, that their patients were required to sign statements acknowledging the treatments that they had received. The defaulting defendants also averred in the affidavits that they did not bill for services that were not rendered”
Now, Avenue C will get its date in Court.
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