In this legal malpractice action Estate of Alston v Ramseur  2015 NY Slip Op 00490  Decided on January 21, 2015 Appellate Division, Second Department the attorney is defending against a claim that there was a departure from good practice which proximately damaged the client.  In defense, the attorney allowed a conditional order to be entered, and then failed to show up for a deposition.  Result?  Answer stricken, assessment of damages.  Not a good outcome.

"In an order dated April 5, 2012 (hereinafter the conditional order), the Supreme Court, Kings County, directed that the defendant’s answer "shall be stricken unless" she appeared for a deposition on or before May 5, 2012. It is undisputed that the defendant failed to comply with the conditional order. In March 2013, the venue of this action was changed from Kings County to Queens County. The Supreme Court, Queens County, granted the plaintiff’s motion to strike the defendant’s answer for failure to comply with, inter alia, the conditional order, and to set the matter down for a hearing on the assessment of damages.

As a result of the defendant’s failure to appear for her deposition on or before May 5, 2012, the conditional order became absolute (see Wilson v Galicia Contr. & Restoration Corp., 10 NY3d 827, 830; Almonte v Pichardo, 105 AD3d 687, 688; Pugliese v Mondello, 67 AD3d 880, 881; Baturov v Marchewka, 10 AD3d 345; D’Aloisi v City of New York, 7 AD3d 750; Hall v Penas, 5 AD3d 549). To be relieved of the adverse impact of the conditional order, the defendant was required to demonstrate a reasonable excuse for her failure to appear for a deposition and a potentially meritorious defense (see Gibbs v St. Barnabas Hosp., 16 NY3d 74, 80; Almonte v Pichardo, 105 AD3d at 688; Panagiotou v Samaritan Vil., Inc., 66 AD3d 979, 980; Zouev v City of New York, 32 AD3d 850). The defendant did neither. Accordingly, the Supreme Court properly granted the plaintiff’s motion pursuant to CPLR 3126 to strike the defendant’s answer for her failure to comply with, inter alia, the conditional order, and to set the matter down for a hearing on the assessment of damages."