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LAW OFFICE FAILURE DEEMED AN ADEQUATE EXCUSE FOR PLAINTIFF’S COUNSEL’S FAILURE TO APPEAR AT THE MANDATORY CONFERENCE IN THIS FORECLOSURE ACTION; PLAINTIFF BANK’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff bank’s motion to vacate the default judgment should have been granted. The Third Department found that law office failure provided a reasonable excuse for the failure of the bank’s counsel to appear at the mandatory conference in this foreclosure action (22 NYCRR 202.27 (b)):

… [P]laintiff was required to demonstrate a reasonable excuse for its failure to appear at the conference and the existence of a potentially meritorious claim … . A determination of reasonable excuse is left to the sound discretion of Supreme Court and will only be disturbed where there has been a clear abuse of that discretion … . In exercising this discretion, Supreme Court may accept law office failure as an excuse “where the claim of law office failure is supported by a detailed and credible explanation of the default” … . …

Counsel explained that he was on vacation in Europe on the day scheduled for the conference. When counsel realized this mistake, he contacted Supreme Court and requested to appear telephonically. Supreme Court accommodated this request and, according to counsel, offered to initiate the call. However, when counsel did not receive a telephone call at the scheduled time, he telephoned chambers, and was informed that defendants had not yet appeared. Counsel avers that he never received a follow-up telephone call from Supreme Court. Counsel also provided his telephone records showing the outgoing calls that he had made that morning to chambers and no incoming calls from Supreme Court. As such, plaintiff demonstrated a reasonable excuse for not appearing at the conference. U.S. Bank, N.A. v Clarkson, 2020 NY Slip Op 05994, Third Dept 10-22-20

 

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