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Current Developments in the Commercial Divisions of the
New York State Courts
Posted: March 5, 2017

Court Vacates Order Granting Motion to Dismiss Based on Plaintiff’s Counsel’s Failure to Appear at Oral Argument – a Cautionary Tale on the Importance of Using eTrack!

On February 17, 2017, Justice Knipel of the Kings County Commercial Division issued a decision in Leggette, Brashears & Graham, Inc. v. Gemini Arts Initiative, Inc., 2017 NY Slip Op 30311(U), vacating a prior order that had granted the defendant’s motion to dismiss on default based on plaintiff’s counsel’s failure to appear at oral argument. The Court explained:

A party seeking to vacate an order entered upon his or her failure to appear at oral argument to oppose a motion is required to demonstrate both a reasonable excuse for the default and the existence of a potentially meritorious opposition to the motion. The determination whether to vacate a default is generally left to the sound discretion of the motion court, and will not be disturbed if the record supports such determination.

Plaintiff’s excuse of law office failure was reasonable. Moreover, there is no evidence that plaintiff intended to abandon the action, that its default was willful, or that defendants were prejudiced. In addition, plaintiff has established that it has a meritorious cause of action, warranting an adjudication of the extant motion on the merits. Accordingly, the prior order is vacated.

(Citations omitted.) The Court then proceeded to deny the motion to dismiss in part and grant it in part.

Although Plaintiff’s counsel dodged a bullet in the end, this decision underscores the importance of signing up for eTrack for all your active cases to insure you are aware of scheduled appearances. eTrack, which we previously blogged about here, is the only official notification of the scheduling of oral arguments and other appearances. The parties will not ordinarily receive notice of Court appearances through the e-filing system.

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