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Law Office Failure Was Valid Excuse for Default—Answer Deemed Served in Absence of Cross Motion

The Second Department determined law office failure constituted a valid excuse for a defendant’s default and defendant’s answer, which was attached to the papers submitted in opposition to plaintiff’s motion for a default judgment, would be deemed served in the absence of a cross motion seeking leave to file a late answer:

In its discretion, the court may accept law office failure as an excuse (see CPLR 2005;… . The claim of law office failure should, however, be supported by a “detailed and credible” explanation of the default or defaults at issue … . Law office failure should not be excused where allegations of law office failure are conclusory and unsubstantiated…. The Supreme Court providently exercised its discretion in accepting the defendant’s excuse of law office failure, as the defendant provided detailed affidavits of personnel explaining the delay in timely serving an answer.  Blake v United States of Am, 2013 NY Slip 05609, 2nd Dept 8-14-13

 

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