You are here: / / LAW OFFICE FAILURE REJECTED AS AN EXCUSE FOR FAILURE TO TIMELY ENTER A...

LAW OFFICE FAILURE REJECTED AS AN EXCUSE FOR FAILURE TO TIMELY ENTER A DEFAULT JUDGMENT, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department determined law office failure was not a sufficient excuse for plaintiff’s failure to enter a default judgment in an action which alleged defendants failed to pay plaintiff the statutory minimum wage:

“CPLR 3215(c) provides that [i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned . . . unless sufficient cause is shown why the complaint should not be dismissed'” … . This statute is strictly construed, as “[t]he language of CPLR 3215(c) is not, in the first instance, discretionary, but mandatory inasmuch as courts shall’ dismiss claims (CPLR 3215[c]) for which default judgments are not sought within the requisite one year period, as those claims are then deemed abandoned” … . Moreover, CPLR 3215(c) expressly provides that a court may dismiss a complaint as abandoned “upon its own initiative or on motion.” The statute further provides, however, that the failure to timely seek a default may be excused if ” sufficient cause is shown why the complaint should not be dismissed'”… . To establish the sufficient cause required by CPLR 3215(c), “the party opposing dismissal must demonstrate that it had a reasonable excuse for the delay in taking proceedings for entry of a default judgment and that it has a potentially meritorious action” … . ” The determination of whether an excuse is reasonable in any given instance is committed to the sound discretion of the motion court'” … . While a court has the discretion to accept law office failure as a reasonable excuse, such excuse must be supported by detailed allegations of fact explaining the law office failure … .

Here, the plaintiff moved pursuant to CPLR 2004 for an extension of time to move for the entry of a default judgment and, thereupon, for leave to enter a default judgment against the defendants. CPLR 2004 allows a court to “extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown.” “In exercising its discretion to grant an extension of time pursuant to CPLR 2004, a court may consider such factors as the length of the delay, the reason or excuse for the delay, and any prejudice to the opponent of the motion” … . …

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 … . 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., 2018 NY Slip Op 03515, Second Dept 5-16-18

​CIVIL PROCEDURE (DEFAULT JUDGMENT, LAW OFFICE FAILURE REJECTED AS AN EXCUSE FOR FAILURE TO TIMELY ENTER A DEFAULT JUDGMENT, CRITERIA EXPLAINED (SECOND DEPT))/ATTORNEYS (LAW OFFICE FAILURE, DEFAULT JUDGMENT, LAW OFFICE FAILURE REJECTED AS AN EXCUSE FOR FAILURE TO TIMELY ENTER A DEFAULT JUDGMENT, CRITERIA EXPLAINED (SECOND DEPT))/DEFAULT JUDGMENTS ( LAW OFFICE FAILURE REJECTED AS AN EXCUSE FOR FAILURE TO TIMELY ENTER A DEFAULT JUDGMENT, CRITERIA EXPLAINED (SECOND DEPT))/LAW OFFICE FAILURE (DEFAULT JUDGMENTS, LAW OFFICE FAILURE REJECTED AS AN EXCUSE FOR FAILURE TO TIMELY ENTER A DEFAULT JUDGMENT, CRITERIA EXPLAINED (SECOND DEPT))/CPLR 3215 (DEFAULT JUDGMENT, LAW OFFICE FAILURE REJECTED AS AN EXCUSE FOR FAILURE TO TIMELY ENTER A DEFAULT JUDGMENT, CRITERIA EXPLAINED (SECOND DEPT))/CPLR 2004 (DEFAULT JUDGMENT, LAW OFFICE FAILURE REJECTED AS AN EXCUSE FOR FAILURE TO TIMELY ENTER A DEFAULT JUDGMENT, CRITERIA EXPLAINED (SECOND DEPT))

You might also like
PLAINTIFF’S ACTION ALLEGING INADEQUATE BUILDING SECURITY WAS A PROXIMATE CAUSE OF AN ASSAULT ON PLAINTIFF IN THE BUILDING LOBBY SHOULD NOT HAVE BEEN DISMISSED; THERE WAS EVIDENCE OF PRIOR CRIMINAL ACTIVITY RAISING A QUESTION OF FACT WHETHER THE ASSAULT WAS FORESEEABLE (SECOND DEPT).
Review Criteria for Municipal Disability Hearing Explained
Question of Fact Whether Licensed Driver Properly Supervised Young Driver with a Learner’s Permit
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE WAS PREMATURE AND SHOULD HAVE BEEN DENIED; CRITERIA EXPLAINED (SECOND DEPT).
PLAINTIFF’S DECEDENT WAS KILLED BY A DRIVER WHO WAS BEING PURSUED BY THE POLICE; THE POLICE DEPARTMENT’S INTERNAL RULES IMPOSED A HIGHER STANDARD OF CARE FOR POLICE-CHASES THAN THE VEHICLE AND TRAFFIC LAW; THE JURY SHOULD HAVE BEEN TOLD THE INTERNAL RULES COULD BE CONSIDERED ONLY AS SOME EVIDENCE OF NEGLIGENCE; PLAINTIFF’S JUDGMENT REVERSED AND NEW TRIAL ORDERED (SECOND DEPT).
JUSTIFICATION DEFENSE JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, CONVICTION REVERSED.
THE COMPLAINT ALLEGED THE FAILURE TO CLEAR ICE AND SNOW AND CERTAIN BUILDING CODE VIOLATIONS CAUSED HER SLIP AND FALL; THE “STORM IN PROGRESS” RULE ONLY NEGATED THE CAUSE OF ACTION BASED UPON THE FAILURE TO CLEAR THE ICE AND SNOW; THE DEFENDANTS DID NOT DEMONSTRATE THE BUILDING CODE VIOLATIONS WERE INAPPLICABLE; DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
THE PETITIONER, A PROBATIONARY POLICE OFFICER CHALLENGING HIS TERMINATION, RAISED QUESTIONS OF FACT IN THIS ARTICLE 78 PROCEEDING; THEREFORE THE SUMMARY DETERMINATION PURSUANT TO CPLR 409 WAS NOT AVAILABLE (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

ARGUMENTS FIRST RAISED IN REPLY PAPERS PROPERLY REJECTED (SECOND DEPT). ARGUMENT RAISED FOR THE FIRST TIME IN REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED,...