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Current Developments in the Commercial Divisions of the
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Posted: November 25, 2013

Default Judgment Entered Against Defendant As Discovery Sanction

On November 8, 2013, Justice Schweitzer of the New York County Commercial Division issued a decision in Grober v. Bronson, 2013 NY Slip Op. 32935(U), granting a default judgment against the defendant as to liability on plaintiffs’ breach of contract and Labor Law claims based on defendant’s repeated failure to comply with discovery demands and appear at court conferences.

In granting this extreme remedy, Justice Schweitzer rejected the argument offered by defendant’s newly retained counsel that he had for five years been suffering from a medical condition that caused him to be bed ridden for most of the time. Justice Schweitzer found that, under the New York Rules of Professional Conduct, defendant’s counsel should not have agreed to represent defendant if he suffered from a physical condition that made it unreasonably difficult for him to represent his client. Justice Schweitzer could not have been more blunt when he wrote:

After more than a year of delays, failures to provide discovery and to appear in court, in violation of court orders, defendant now seeks to delay further because he has chosen, at the last minute, to retain a lawyer who is too ill to provide effective representation.

Reading between these lines, one cannot rule out the possibility that Justice Schweitzer believes that the defendant purposely retained counsel who he knew was too ill to represent him as a delaying tactic. In any event, this case provides a valuable lesson that clients may not be excused for the lapses of their ill attorneys and that attorneys should not accept engagements that they are too ill to perform.

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