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Current Developments in the Commercial Divisions of the
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Posted: March 20, 2016

E-Filing Error Reasonable Excuse to Support Vacating Default Judgment

On March 11, 2016, Justice Demarest of the Kings County Commercial Division issued a decision in Herzog v. Belizario, 2016 NY Slip Op. 26073, holding that an e-filing error constituted reasonable excuse to vacate a default judgment.

In Herzog, the “defendants’ attorney . . . prepared a verified answer with counterclaims, along with the notice of rescission and the notice of appearance, to be filed by the deadline to which he and plaintiffs’ attorney had agreed, but due to an electronic filing error made by his employee, only the notice of rescission and the notice of appearance were filed.” The defendants’ counsel “he did not find out about the mistake until he called plaintiffs’ attorney several days before a conference . . . .” Plaintiffs move for default judgment. The court denied the motion, explaining:

To avoid the entry of a default judgment, a party must show a reasonable excuse for the default and a potentially meritorious defense. Here, [defendants’ counsel’s] affirmation is sufficient to establish that the failure to submit a timely answer was not willful, but, rather, was due to law office failure. Further, defendants have submitted their affidavits and their proposed answer, which raise potentially meritorious defenses. Additionally, plaintiffs have failed to show any prejudice from the short delay in defendants’ service of an answer, and public policy favors the resolution of cases on the merits.

(Internal quotations and citations omitted).

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