LAW OFFICE FAILURE

We all make mistakes but when alleging it as an excusable default on a motion to vacate under CPLR 5015 (a) (1), be specific in your allegations.

For example in Bank of N.Y. Mellon v Faragalla, 2019 NY Slip Op 05641, Decided on July 17, 2019, Appellate Division, Second Department:

"A party seeking to vacate a default in opposing a motion or in appearing at a conference must demonstrate both a reasonable excuse for its default and a potentially meritorious cause of action or defense (see CPLR 5015[a][1]; OneWest Bank, FSB v Singer, 153 AD3d 714, 715-716; Flagstar Bank, FSB v Damaro, 145 AD3d 858, 859-860; Bayview Loan Servicing, LLC v Martano, 131 AD3d 1187, 1189; GMAC Mtge., LLC v Guccione, 127 AD3d 1136, 1138).

"A motion to vacate a default is addressed to the sound discretion of the motion [*2]court" (Aurora Loan Servs., LLC v Ahmed, 122 AD3d 557, 557-558 [internal quotation marks omitted]; see U.S. Bank, N.A. v Dorvelus, 140 AD3d 850, 852; Forward Door of N.Y., Inc. v Forlader, 41 AD3d 535). "In making that discretionary determination, the court should consider relevant factors, such as the extent of the delay, prejudice or lack of prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits" (Citicorp Trust Bank, FSB v Makkas, 127 AD3d 907, 908; see Lyubomirsky v Lubov Arulin, PLLC, 125 AD3d 614; Fried v Jacob Holding, Inc., 110 AD3d 56, 60).

Under the circumstances presented here, the appellants set forth a reasonable excuse for their failure to appear at the centralized motion part of the Supreme Court on the return date of the plaintiff's motion based on evidence of law office failure. In an affirmation, the appellants' attorney explained that upon receiving the plaintiff's motion, he directed his office's legal assistant to note the return date of the motion on the office calendar, but that the return date had not been noted on the calendar. In addition, the appellants demonstrated a potentially meritorious defense based upon the statute of limitations. Thus, the Supreme Court improvidently exercised its discretion in denying that branch of the appellants' motion which was to vacate their default in opposing the plaintiff's motion, inter alia, for summary judgment (see Flagstar Bank, FSB v Damaro, 145 AD3d at 859-860; U.S. Bank, N.A. v Bukobza, 142 AD3d 1070, 1071; Bank of N.Y. v Segui, 120 AD3d 1369, 1373-1374; see also CPLR 2005; Bayview Loan Servicing, LLC v Martano, 131 AD3d 1187, 1189)."

Compare that to HSBC Bank USA, N.A. v Coronel, 2019 NY Slip Op 05648, Decided on July 17, 2019, Appellate Division, Second Department:

"We agree with the Supreme Court's determination in an order entered November 28, 2016, to deny the motion of the defendant Alex Coronel (hereinafter the appellant) pursuant to CPLR 5015(a)(1) to vacate a prior order dated November 6, 2015, granting the plaintiff's unopposed motion, inter alia, for summary judgment on the complaint, as well as the court's determination to deny vacatur of an order dated October 7, 2016, granting the plaintiff's motion for a judgment of foreclosure and sale. The appellant's unsubstantiated and conclusory claim of law office failure was insufficient to demonstrate a reasonable excuse for his default in opposing the plaintiff's motion, inter alia, for summary judgment (see Bank of N.Y. Mellon v Ruci, 168 AD3d 799, 800; IndyMac Bank, FSB v Izzo, 166 AD3d 866, 868; Option One Mtge. Corp. v Rose, 164 AD3d 1251, 1252). In light of the appellant's failure to establish a reasonable excuse for his default, it is not necessary to determine whether he demonstrated a potentially meritorious opposition to the motion (see Nationstar Mtge., LLC v Ramnarine, 172 AD3d 886, 887; Bank of N.Y. Mellon v Ruci, 168 AD3d at 800; Hudson City Sav. Bank v Bomba, 149 AD3d 704, 705)."

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]"