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Posted: May 12, 2015

Counsel Fails to Demonstrate Law Office Failure Sufficient to Justify Vacating Default

On May 8, 2015, Justice Oing of the New York County Commercial Division issued a decision in Ludwigs Drug Store, Inv. v. Brooklyn Events Center LLC, Index No.: 652947/2014, denying a motion to vacate a default judgment.

In Ludwigs Drug Store, the plaintiffs brought an action relating to a license to a suite at the Barclay’s Center. The defendant’s motion to dismiss was granted on default. The plaintiffs moved to vacate the default. The court denied the motion, explaining:

A plaintiff seeking to vacate an order of dismissal granted on default must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action. The determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court. Law office failure, for example the misplacement of motion papers, may under some circumstances constitute a reasonable excuse justifying vacatur of a default. In making this determination, courts are mindful of the strong public policy favoring the resolution of disputes on their merits.

(Internal citations omitted). The court went on to find that even by that lenient standard, the plaintiffs had not demonstrated a reasonable excuse. In a cautionary tale for lawyers who are not comfortable with e-filing and e-mail, the following was not deemed a sufficient excuse:

[P]laintiffs’ counsel’s proffered excuse is that he is generally a solo practitioner who sometimes employs one associate, and at the time the motion to dismiss was made in December of 2014 counsel did not employ an associate. Further, he does not personally have a computer for business or personal use; he has never used a computer in his practice, and all e-mail correspondence addressed to him goes to his wife’s computer, who is also his office manager. Accordingly, any efile notifications to plaintiffs’ counsel also go to his wife’s computer. Additionally, counsel’s office manager/wife had eye surgery scheduled for December 22, 2014, and did not work in the office the week following her surgery and had trouble looking at a computer. On December 19, 2014, the day that the notice of motion was e-filed and e-mailed to plaintiffs’ counsel, his wife had a doctor’s appointment for a pre-operative evaluation. By the time his wife returned to work on December 29, 2014, any e-file notifications or e-mail correspondence sent to his firm inbox would, at that point, have been buried under 10 days of correspondence. Thus, plaintiff’s counsel was unaware that the motion to dismiss was submitted unopposed until January 15, 2015.

(Internal quotations and citations omitted).

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