I recently represented a client with an interesting dilemma. A few years ago he hired a lawyer when he was sued for several thousand dollars. The lawyer failed at negotiating a settlement and never answered the complaint. However, the Plaintiff failed to do anything on the case for over four years. Then, in December, 2009, my client got a letter in the mail seeking to settle the case and he came to me for help.
After reviewing the letter, I advised my client that he had grounds for dismissal pursuant to CPLR 3215. CPLR 3215 contains the standards and procedures for moving to dismiss. Pursuant to CPLR 3215(c), a Plaintiff has one year following the default to move for a judgment of default. It reads, "If 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, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed." Thus, I advised my client that he could move for dismissal, but that if he did so, the plaintiff would likely move for judgment of default. Or, I told him, he could avoid the risk by negotiating a settlement.
I was strongly opposed to negotiating a settlement for what I believed was a stale claim, and my client agreed. Rather than respond to the plaintiff's letter, I filed a motion to dismiss pursuant to CPLR 3215(c). The Plaintiff opposed the motion arguing that its lawyer forgot to calendar any information about the case and, therefore, the failure to move for default was the result of "law firm error." Plaintiff argued that, pursuant to CPLR 2005, law firm error was per se sufficient cause. Plaintiff also cross-moved for a default judgment.
Four briefs later, argument day finally arrived. I felt confident that the law was on our side, but was still a little nervous because you never know what a judge might do, especially when my client was not blameless and had failed to answer the complaint. We were called to meet with the law clerk and my nerves were immediately calmed when he said to my adversary, "counselor, unfortunately defaults, unlike wine, do not get better with age." We met with the clerk for fifteen minutes and then argued before the judge. Fortunately, the judge agreed with my argument that merely claiming that the lawyer forgot to calendar anything having to do with the case was not sufficient to excuse a four year delay in moving for default. The judge did not rule from the bench, but she recently issued an order denying the default and dismissing the action in its entirety.
There are several best practices lessons that arise from this case. One, litigators need to be sure to have proper docketing and calendaring software so that they have vital case deadlines in their calendars. Two, A party cannot sit on a default. If the defendant defaults, make sure to move for default quickly, and, at the latest, within one year of default. And three, law firm error is not a magic word that excuses every mistake that a lawyer makes. Neglect is still neglect. As the court said in INCORPORATED VILLAGE OF HEMPSTEAD v. JABLONSKY, 725 N.Y.S.2d 76, "While CPLR 2005 allows courts to excuse a default due to law office failure, it was not the Legislature's intent to routinely excuse such defaults, and mere neglect will not be accepted as a reasonable excuse."
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