Wednesday, May 4, 2016

Extending time and law office failure.

Practice point:  To extend the time to answer the complaint and to compel the plaintiff to accept an otherwise untimely answer, a defendant must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action.  The Appellate Division determined that the Supreme Court providently exercised its discretion in rejecting the defendant's unsubstantiated explanation that lawyers he consulted, but apparently did not retain, had advised him not to answer the complaint. A defendant's claim that his attorney apparently made an erroneous assumption regarding the need to answer the complaint does not constitute a valid excuse. At most, the advice, and the defendant's decision to follow it, is a misguided strategy, not law office failure.

Student note:  While a court has the discretion to accept law office failure as a reasonable excuse, pursuant to CPLR 2005), a conclusory, undetailed, and uncorroborated claim of law office failure is insufficient.

Case:  Bank of N.Y. Mellon v. Colucci, NY Slip Op 03129 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue: Hearsay, hospital records, and admissibility..