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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: January 26, 2020

Bare Assertion of Law Office Failure Insufficient to Justify Vacating Default Judgment

On January 15, 2020, the Second Department issued a decision in Deutsche Bank Natl. Trust Co. v. Fishbein, 2020 NY Slip Op. 00260, holding that the bare assertion of law office failure was an insufficient basis for vacating a default judgment, explaining:

In order to vacate a default in appearing at a scheduled court conference, a plaintiff must demonstrate both a reasonable excuse and a potentially meritorious cause of action. The determination of whether an excuse is reasonable lies within the sound discretion of the Supreme Court. The court has discretion to accept law office failure as a reasonable excuse where the claim is supported by a detailed and credible explanation of the default.

Here, the plaintiff’s bare allegation of law office failure was conclusory and wholly unsubstantiated. The plaintiff did not proffer an affidavit from anyone with personal knowledge of the purported law office failure and failed to provide any details regarding such failure. Having failed to provide a detailed and credible explanation for the default, the plaintiff’s allegation of law office failure did not rise to the level of a reasonable excuse for its default.

Since the plaintiff failed to proffer a reasonable excuse for its default, this Court need not consider whether it demonstrated a potentially meritorious cause of action.

(Internal citations omitted).

If you are served with a complaint and fail timely to answer, the court can enter judgment against you: a default judgment. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions regarding whether you have been properly served or if a default judgment has been entered against you.

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