This legal malpractice case has been active for 21 years, and dates from the Club dominated 1980’s.  Plaintiff is a model-actor-club owner who has had a $ 1.25 million judgment from what is described as an accident.  "In December 1988, non-party David W. Ross ("Ross") allegedly had an accident and sustained injuries at the World Night Club (the "World" or "nightclub"), which was then jointly owned by Frank Roccio (Roccio) and Peter Frank (Frank). As a result, in November 1989, Ross brought suit against the World, El Mundo, Inc., and plaintiff, although plaintiff had not owned the World Club at the time of the accident. Plaintiff’s then personal attorney, Oleh N. Dekajlo, Esq. ("Mr. Dekajlo") of Berns Dekajlo & Castro ("Berns Dekajlo"), who had represented plaintiff in the sale of his interests in the World nightclub, allegedly received a copy of the Summons and Complaint in October or November 1989. Allegedly, Berns Dekajlo did not notify plaintiff that Ross had sued him personally."

Thus starts the 21 year life of this legal malpractice case.  Garcia v. Berns Dekajlo & Castro, 106895/06;Decided: June 1, 2010;Justice Carol Robinson Edmead.  The court, after a thorough discussion of argument points, and the law concerning summary judgment determined;

"The Issler defendants entered into a retainer agreement with plaintiff and upon its execution, agreed to the express terms stated therein (see Maysek & Moran, Inc. v. S.G. Warburg & Co., Inc., 284 AD2d 203, 726 NYS2d 546 [1st Dept 2001]; see e.g., Ginther v. Scinta, 31 AD3d 1135, 818 NYS2d 376 [4th Dept 2006]). Under the Retainer Agreement, the Issler defendants were "to act as [plaintiff’s] attorney…for the purposes of appealing the order…dated December 10, 2003 and…bringing on a motion to renew and/or reargue the motion which was decided by the aforesaid order" (emphasis added). Thus, arguably, the Issler defendants had an obligation to also renew the December 10, 2003 order. As such, the plain terms of the Retainer Agreement, while defeating plaintiff’s claim that the Issler defendants had a duty to reargue the Court’s January 3, 2002 order, arguably bound the Issler defendants to move to renew. Thus, it cannot be said that the Issler defendants had no obligation to move to renew the December 10, 2003 Order.

Further, contrary to Issler defendants’ contention, it cannot be said, as a matter of law, that the Issler defendants did not commit legal malpractice by failing to move for renewal. It is uncontested that as relevant herein, a motion for leave to renew under CPLR 2221 "shall be based upon new facts not offered on the prior motion that would change the prior determination" and "shall contain reasonable justification for the failure to present such facts on the prior motion." The motion to renew, when properly made, posits newly discovered facts that were not previously available or a sufficient explanation is made why they could not have been offered to the Court originally (see discussion in Alpert v. Wolf, 194 Misc 2d at 133, 751 NYS2d 707; D. Siegel New York Practice §254 [3rd ed. 1999]). Further, to vacate a default judgment, plaintiff would have had to "demonstrate both a reasonable excuse and a meritorious defense" (Benson Park Associates, LLC v. Herman, 899 NYS2d 614 [1st Dept 2010] citing Mutual Mar. Off., Inc. v. Joy Const. Corp., 39 AD3d 417, 419, 835 NYS2d 88 [2007]). Thus, in order for the Issler defendants to move to renew, seeking to vacate the default judgment entered against the plaintiff, plaintiff via the Issler defendants would have to have shown not only a meritorious defense, but, that the three affidavits constituted newly discovered facts that were not previously available or a sufficient explanation as to why such affidavits "could not have been offered to the Court originally," and that such affidavits would have changed the Court’s prior determination finding proper service.

It is clear to this Court that upon renewal of the motion to vacate the default judgment, plaintiff would have established the first prong of vacatur, i.e., he had a meritorious defense to Ross’s Action. The documentary evidence established that plaintiff was not an officer nor did plaintiff have any interest in the World nightclub at the time of Ross’s accident, and bore no responsibility for the injuries Ross sustained at the nightclub.

Further, contrary to the Issler defendants’ contention, it cannot be said, as a matter of law, that the December 2003 order finding proper service upon plaintiff and consequently, jurisdiction, would have remained intact if the Issler defendants presented the three affidavits."