Blogs

Commercial Division Blog

Current Developments in the Commercial Divisions of the
New York State Courts
Posted: December 7, 2016

Default Judgment Reversed; Law Office Failure Sufficient Excuse

On November 29, 2016, the First Department issued a decision in Cheri Restaurant Inc. v. Eoche, 2016 NY Slip Op. 07985, vacating a default judgment, explaining:

To obtain relief from a default judgment, a party is required to demonstrate both a reasonable excuse for the default and a meritorious claim or defense to the action. Here, defendant has adequately demonstrated a reasonable excuse, namely, inadvertent law office failure. Defendant’s new counsel, in an affirmation submitted to the motion court, stated that there was a misunderstanding between her and defendant’s former counsel, and that she was unaware of the scheduled deposition and the compliance conference when she took over representation in early April 2015, approximately a month before the May 5th conference date, which she missed. Shortly after receiving part of defendant’s case file – which only contained plaintiff’s discovery responses and discovery demands – defendant’s new counsel became very ill and lost approximately two weeks from work. Additionally, new counsel affirmed that she was informed by defendant’s former counsel that he had received an extension of time to respond to plaintiff’s discovery demands. In fact, plaintiff’s counsel confirmed that she agreed to the extension. Lastly, defendant’s new counsel affirmed that she was unaware that this was an e-filed case as she had never appeared in the New York County Supreme Court, Commercial Division, before, and her practice involved cases mainly in Queens and Kings County, where e-filing was not mandated.

Additionally, the record does not show a pattern of dilatory behavior by the defendant or his counsel, or indicate that the default was willful. Nor is this a case in which defense counsel was fully aware of her obligations and intentionally and repeatedly failed to attend to them.

(Internal quotations and citations omitted).

View posts