The Appellate Division unanimously reversed, on the law, the facts, and in the exercise of its discretion, the Order which denied defendant's motion to vacate a prior order of the same court and Justice, which had struck defendant's answer and granted judgment to plaintiff. In this action to recover on a personal guaranty of a promissory note, defendant failed to appear for a conference after the case was referred to mandatory mediation, and then did not appear at a preliminary conference on the adjourned date for the conference, resulting in entry of a default judgment in favor of plaintiff, pursuant to NYCRR 202.27[a]). Defendant moved, pursuant to CPLR 5015(a)(1), to vacate the default judgment, asserting that defendant's failures to appear were not willful, but, instead, were the result of law office failure. Specifically, defense counsel failed to appear at the mediation conference because he inadvertently overlooked the scheduled date on the fifth page of the administrative order/mediation intake forms, and then was not aware of the scheduled preliminary conferences because a Notice of Preliminary Conference was never electronically filed on the New York State Electronic Filing System and he had not yet signed up for e-track notifications because the case was at its inception.
The Appellate Division found that defendant offered a reasonable excuse for failing to appear at the mediation and the conferences. Defendant showed an intent to appear and litigate on the merits by timely answering the complaint, having the case transferred to New York County, and then timely responding to plaintiff's discovery demand. Accordingly, defendant demonstrated that his failure to appear was neither willful nor part of a pattern of dilatory behavior, but was purely the result of inadvertent law office failure. Moreover, the short delay caused by the default, the prejudice to defendant, and the lack thereof to plaintiff, and the strong public policy concerns favoring adjudicating matters on their merits, all militate in favor of vacating the default, even when the excuse of law office failure is not especially compelling.
Ageits SMB Fund II, L.P. v. Rosenfeld, NY Slip Op 07309 (1st Dep't December 8, 2020)
