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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: October 21, 2020

COVID-19 Pandemic No Excuse for Failing to Respond to Motion

On September 30, 2020, Justice Friedman of the New York County Commercial Division issued a decision in Express Trade Capital, Inc. v. Horowitz, 2020 NY Slip Op. 33223(U), holding that the COVID-19 pandemic was not an excuse for failing to respond to a motion, explaining:

Defendants also appear to assert that they have an excuse for not appearing. Defendant Horowitz submits an affidavit in which he states that in late 2019 Creative Outdoor attempted to address its outstanding debt with plaintiff. Almost immediately thereafter, defendants began to experience drastic effects of the coronavirus pandemic on Creative Outdoor’s business, with closing of the business for a period of time. Mr. Horowitz further states that after the business began to reopen in June and July 2020, “we received various papers” in August 2020 and “reached out” to plaintiff. Notably, defendants do not deny that they were served with the motion for summary judgment in lieu of complaint. On the contrary, they attach an email from Creative Outdoor to Express Trade, dated November 29, 2019, which states: “I understand you just had an attorney file for the judgment against us in New York.” Under these circumstances, their bare assertion that their business was seriously affected by the coronavirus pandemic, while regrettable, does not establish a viable excuse for their failure to take any steps to respond to the motion for summary judgment in lieu of complaint.

(Internal citations omitted).

If you are served with a complaint and fail timely to answer, or if you answer and do not appear at schedule court appearances or oppose a motion for judgment, 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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