Key Takeaway
Civil Kings court case on attorney representation requirements and default judgment appeals in no-fault insurance litigation.
This article is part of our ongoing adjournments coverage, with 30 published articles analyzing adjournments issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
City Chiropractic, P.C. v Global Liberty Ins. Co. of N.Y., 2019 NY Slip Op 51981(U)(App. Term 2d Dept. 2019)
This only happens in Civil Kings. I think one attorney in particular really wanted to play this argument all the way to the end. My only thought was to do what you want, I will eventually win. It was one of the sleazier arguments i have endured in my 17 years of practice. The effort I personally went through to stop the insanity was herculean. Sadly, it took the wisdom of several Supreme Court Justices at the Appellate Term to see what Civil Court Special Term and Trial Judges got wrong.
“In this no-fault action, a default was taken against defendant on April 28, 2017, because counsel appearing on defendant’s behalf, The Law Office of Jason Tenenbaum, P.C., was not the attorney of record and the court determined that counsel had not established “that it represents the pursuant to the CPLR,” and, thus, that defendant had failed to appear.
Defendant, represented by the same counsel, subsequently moved to open the default. It submitted, among [*2]other things, a Supreme Court order of substitution entered May 4, 2017 and a notice of appearance dated April 24, 2017, which lists The Law Office of Jason Tenenbaum, P.C. as the attorney appearing for defendant. By order entered May 8, 2018, the Civil Court (Rosemarie Montalbano, J.) denied defendant’s motion, stating that defendant had “failed to establish a reasonable excuse for failing to have its incoming counsel produce for the court proper proof of its legal representation of defendant.” A judgment was entered on May 24, 2018, awarding plaintiff the principal sum of $4,319.29.
Although no appeal lies from a judgment entered upon the default of the appealing party (see CPLR 5511), an appeal from such a judgment brings up for review those matters which were the subject of contest below (see James v Powell, 19 NY2d 249, 256 n 3 ), which, in this case, was the order entered May 8, 2018 denying defendant’s motion.
Prior to the April 28, 2017 court date, on which the trial was scheduled to begin, defendant had made two different attempts to effect a substitution of counsel. It filed an application in the Supreme Court to have an order of substitution executed. It also attempted to move in the Civil Court, by order to show cause (OSC), to stay the trial pending the determination of the Supreme Court application or, in the alternative, for the Civil Court to make the substitution.
Defendant submitted, in support of each application, a November 14, 2016 affidavit executed by Richard Dowd, who identified himself therein as defendant’s claim manager. Dowd listed four firms, including defendant’s former counsel of record in this case, that had previously handled no-fault cases for defendant. Dowd stated that those firms had all been disbanded prior to January of 2016 and that the files previously handled by those firms were all being handled by The Law Office of Jason Tenenbaum, P.C. and another named firm.
He further stated that “e hereby consent to The Law Office of Jason Tenenbaum, P.C. and to handle all of the files that above counsel handled, where a Notice of Appearance is filed with the Court.” Defendant also submitted, in support of its Civil Court motion, the April 24, 2017 notice of appearance.
The Civil Court refused to sign the OSC. In court on April 28, 2017, an associate with The Law Office of Jason Tenenbaum, P.C. sought an adjournment or a substitution on the same grounds laid out in the proposed motion, which oral application was denied. However, the Supreme Court granted defendant the requested relief by order entered May 4, 2017. The order of substitution, the validity of which has not been questioned, states that it is “ordered and adjudged that he Law Office of Jason Tenenbaum, P.C. or , upon Filing a Notice of Appearance is substituted in the stead” of for all no-fault cases involving Global Liberty Insurance Co. of New York.”
CPLR 321 (b) permits the change or withdrawal of an attorney, insofar as is relevant here, by the filing of a consent to change attorney signed by the retiring attorney or by motion on such notice as the court may direct. Defendant did not strictly comply with CPLR 321 (b) (1), regarding a consent to change attorney, because the retiring attorney was a firm that no longer existed. Defendant was unable to comply with CPLR 321 (b) (2), regarding a motion, because [*3]the Civil Court declined to sign its OSC prior to the trial.
Under the circumstances, including the presentation of the Dowd affidavit and notice of appearance to the court before defendant was held to be in default, and the order of substitution entered by the Supreme Court soon after defendant was held to be in default, defendant’s failure to comply with CPLR 321 (b) does not justify the entry of a default judgment (cf. EIFS, Inc. v Morie Co.,298 AD2d 548 ; Tillman v Mason,193 AD2d 666 ; Juers v Barry, 114 AD2d 1009 ). Thus, we grant defendant’s motion to open its default in the “interests of substantial justice” (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 ; cf. also PDQ Aluminum Prods. Corp. v Smith,20 Misc 3d 94 ).
Accordingly, the judgment, insofar as reviewed, is reversed, the order entered May 8, 2018 is vacated and defendant’s motion to open its default in appearing for trial is granted.”
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Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
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Jul 8, 2010Common Questions
Frequently Asked Questions
What happens when a court case is adjourned in New York?
An adjournment postpones a court proceeding to a later date. In New York, adjournments may be granted for reasonable cause, but courts have discretion to deny them. Repeated adjournment requests can result in sanctions, preclusion orders, or even default judgments.
Can a no-fault arbitration be adjourned?
Yes, but no-fault arbitrations under the American Arbitration Association rules have strict scheduling requirements. Adjournments must be requested in advance and approved by the arbitrator. Failure to appear without a granted adjournment can result in a default award.
How many adjournments can I get in a New York court case?
There is no fixed limit, but courts look at the reasons for the request, the number of prior adjournments, and whether the delay prejudices the opposing party. Under the court's Individual Part Rules, judges may impose specific limits on adjournments in their courtrooms.
What are the requirements for a valid affidavit in New York?
Under CPLR 2309, an affidavit must be sworn before a notary public or other authorized officer. It must contain statements of fact based on the affiant's personal knowledge — not conclusions, opinions, or hearsay. The affiant must be identified, the oath properly administered, and the document signed and notarized.
Can an affirmation substitute for an affidavit in New York?
Only if the affirmant is an attorney, physician, dentist, or podiatrist under CPLR 2106. These professionals may submit unsworn affirmations under penalty of perjury instead of notarized affidavits. All other individuals must use properly notarized affidavits.
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About the Author
Jason Tenenbaum, Esq.
Jason Tenenbaum is the founding attorney of the Law Office of Jason Tenenbaum, P.C., headquartered at 326 Walt Whitman Road, Suite C, Huntington Station, New York 11746. With over 24 years of experience since founding the firm in 2002, Jason has written more than 1,000 appeals, handled over 100,000 no-fault insurance cases, and recovered over $100 million for clients across Long Island, Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, the Bronx, and Staten Island. He is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.
Jason is admitted to practice in New York, New Jersey, Florida, Texas, Georgia, and Michigan state courts, as well as multiple federal courts. His 2,353+ published legal articles analyzing New York case law, procedural developments, and litigation strategy make him one of the most prolific legal commentators in the state. He earned his Juris Doctor from Syracuse University College of Law.
Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
If you need legal help with a adjournments matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.
