On November 6, 2024, the Second Department issued a decision in Anthony Ambrosio Irrevocable Legacy Trust Dated July 11, 2011 v. Kamal Servs., LLC, 2024 NY Slip Op. 05429, holding that specific evidence of law office failure justified vacating a default judgment, explaining:
A case dismissed pursuant to CPLR 3216 may be restored only if the plaintiff can demonstrate both a reasonable excuse for the default and a meritorious cause of action. The determination of what constitutes a reasonable excuse generally lies within the sound discretion of the trial court. Law office failure may qualify as a reasonable excuse for a party’s default if the claim of such failure is supported by a credible and detailed explanation of the default.
Here, the Supreme Court improvidently exercised its discretion in determining that the plaintiff did not sufficiently allege law office failure as the excuse for the plaintiff’s default in opposing the defendant’s motion pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against it for failure to prosecute and the plaintiff’s failure to serve and file a note of issue within 90 days of the demand. Affirmations and affidavits submitted by the plaintiff in support of its motion explained that there was a miscommunication between the plaintiff, the plaintiff’s former counsel, and the plaintiff’s newly retained counsel as to whether the plaintiff’s newly retained counsel was handling the representation of the plaintiff. Emails between the plaintiff’s former counsel and the plaintiff’s newly retained counsel further demonstrated that the plaintiff and the plaintiff’s former counsel repeatedly attempted to contact the plaintiff’s newly retained counsel. Additionally, the plaintiff demonstrated that it had a meritorious cause of action.
(Internal quotations and citations omitted).