WHAT IS LAW OFFICE FAILURE

In this case, counsel alleged law office failure as a reasonable excuse for not filing for a default judgment when seeking an exception pursuant to CPLR 3215 (c) for entry of judgment after the expiration of one year after the default. However, this court wanted specific facts of the office failure not just the mere allegation.

Capital One Bank (USA), N.A. v Eastman, 2019 NY Slip Op 50253(U), Decided on March 6, 2019, Civil Court Of The City Of New York, Kings County Roper, J.:

"Law office failure may be viable grounds for reasonable excuse (Matter of Esposito, 57 AD3d 894 [2d Dept 2008]). However, the bar is high. Even though the court has discretion pursuant to CPLR 2005, "as a matter of law in the interests of justice to excuse delay or default resulting from law office failure," said excuse must be so presented with detailed articulable facts that are not amorphous, vague or subject to arbitrary interpretations (CPLR 2005; CEO Bus. Brokers, Inc. v Alqabili, 105 AD3d 989, 990 [2d Dept 2013]; HSBC Bank USA, N.A. v Wider, 101 AD3d 683 [2d Dept 2012]). The Appellate Division, Second Division held:

"The Supreme Court providently exercised its discretion in rejecting the plaintiff's excuse of law office failure and properly, in effect, directed dismissal of the complaint insofar as asserted against the defendants as abandoned pursuant to CPLR 3215(c). The plaintiff's excuse of law office failure did not rise to the level of a reasonable excuse, as it was vague, conclusory, and unsubstantiated (see U.S. Bank, N.A. v Dorvelus, 140 AD3d at 852; Baruch v Nassau County, 134 AD3d 658, 659; Mattera v Capric, 54 AD3d 827, 828). The excuse was contained in a brief paragraph in the supporting affirmation of an associate who stated, in sum and substance, that the attorney who commenced the action left the employ of the law firm of record, and the plaintiff's file was only discovered in May 2016 when the firm was relocating its offices. There was no affirmation from a principal of the law firm and no indication in the associate's affirmation that he had any personal knowledge of the purported law office failure or that he was even employed by the firm at the time it allegedly occurred. The one-year period to move for the entry of a default judgment lapsed in August 2015, and there is no indication that the attorney had left prior thereto."

(Ibrahim v Nablus Sweets Corp., 161 AD3d 961, 964 [2d Dept 2018]). "Here, the plaintiff's assertions that it did not take any proceedings for entry of judgment within one year after the defendants' default due to law office failure occasioned by the dissolution of the law firm originally representing it, combined with delays caused by Hurricane Sandy in 2012, were conclusory and unsubstantiated, and did not rise to the level of a reasonable excuse (see Bank of NY Mellon v Colucci, 138 AD3d 1047, 1047-1048, [2016]; Buchakian v Kuriga, 138 AD3d 711, 712-713, [2016]; Baruch v Nassau County, 134 AD3d at 659; Ryant v Bullock, 77 AD3d 811, 812 [2010])."

(U.S. Bank, N.A. v Dorvelus, 140 AD3d 850, 852 [2d Dept 2016]). "Here, the affirmation of an attorney from the law firm representing the appellants explained that the firm was downsizing significantly, two attorneys who had been handling the case were no longer with the firm, and the newly-assigned attorney's secretary, upon whom the attorney relied for calendaring matters, had recently left the firm. This was a sufficiently detailed explanation for the law firm's failure to appear (see Franco Belli Plumbing & Heating & Sons, Inc. v Imperial Dev. & Constr. Corp., 45 AD3d 634, 636 [2007]; Friedman v Crystal Ball Group, Inc., 28 AD3d 514, 515 [2006]; Weekes v Karayianakis, 304 AD2d 561, 562 [2003]; Morris v Metropolitan Transp. Auth., 191 AD2d 682 [1993])."

(Matter of Esposito, 57 AD3d 894, 895 [2d Dept 2008]). "In this case, the excuse proffered by the defendants was limited to the self-serving and unsubstantiated allegations" (Morris v Metropolitan Transp. Auth., 595 NYS 2d 539, 540 [2d Dept 1993]). "Here, defense counsel's allegation of law office failure was vague, conclusory, [*4]unsubstantiated (see HSBC Bank USA N.A. v Wider, 101 AD3d 683 [2012]; Cantor v Flores, 94 AD3d 936, 937 [2012]; Wells Fargo Bank, N.A. v Cervini, 84 AD3d 789, 789-790 [2011]), and unreasonable under the circumstances (cf. Stolpiec v Wiener, 100 AD2d 931, 932 [1984])."

(CEO Bus. Brokers, Inc. v Alqabili, 105 AD3d 989, 990 [2d Dept 2013]).

In the instant matter herein, plaintiff as movant fails to provide detailed articulable facts and allegations as to its law office failure to viably establish reasonable excuse for the delay in filing entry of judgment after default. It strains credulity and is indeed an affront to this Honorable Court that plaintiff's law office failure upon which it relies for its reasonable excuse to satisfy the high bar for the "sufficient cause" exception in this strict mandatorily applied statute of CPLR 3215 (c) is encapsulated merely as, "Plaintiff's counsel inadvertently allowed the one-year period to elapse."[FN1] "Inadvertently", accidentally, unwittingly, mistakenly or casually, is merely an "oops" defense where not accompanied by articulable substantiated corroborating facts. Indeed, the court cannot entertain or give viability to a pro-se party arguing such a defense wholly devoid of any substance, nor likewise even more so to that of a represented party as plaintiff herein in this instant matter. Here, as pled by plaintiff with lack of specificity, including dates, times, place of occurrence and substantiating facts for law office failure. No qualifications, no specifics, no articulable facts, no colorable legal arguments whatsoever. Plaintiff failed to even attempt to set forth any caselaw with legal analysis for its position. The lack thereof of facts and of legal argument is a sanctionable frivolous filing of this instant motion.[FN2] Plaintiff presents no relevant prevailing precedential law utilizing the most basic reasoning skills of a law school student to provide a brief of its legal position for the court to consider as to the remedy that's sought by movant. Where the law is not in a movant's favor, at the very least present the current state of the law to the court and then movant may argue to differentiate the facts from the prevailing holdings against movant's position. Court finds that failure to so do and merely make a vague, conclusory, unsubstantiated, arbitrarily [*5]suggestive statement is a frivolous filing unnecessarily clogging up the very strained judicial resources, which negatively impacts the efficiency of rendering justice to our citizens. Such frivolous filings are particularly diametrically opposed to the intent of Excellence Initiative by Honorable Chief Judge.[FN3]"