Discovery errors lead to a large number of legal malpractice claims. in Comprehensive Mental Assessment & Med. Care, P.C. v Gusrae Kaplan Nusbaum, PLLC 2023 NY Slip Op 00408 Decided on February 1, 2023 Appellate Division, Second Department the legal malpractice case was lost on discovery errors in the actual case itself.
“In 2012, the plaintiffs commenced this action against the defendant law firm, asserting, inter alia, causes of action to recover damages for legal malpractice and unjust enrichment. The defendant moved pursuant to CPLR 3126 to strike the complaint and the plaintiffs’ reply to its counterclaims based on the plaintiffs’ failure to comply with discovery orders directing them to produce certain individuals for depositions. While the motion was pending, the plaintiffs’ attorney moved to be relieved as counsel. By order dated April 18, 2018, the Supreme Court granted the motion of the plaintiffs’ attorney and stayed the action for 60 days in order to afford the plaintiffs the opportunity to retain new counsel, which it noted “is required for corporate entities.” The plaintiffs subsequently defaulted in opposing the defendant’s motion. By order dated July 18, 2018, the court granted the defendant’s unopposed motion.
Thereafter, the plaintiffs moved pursuant to CPLR 5015(a)(1) to vacate the order dated July 18, 2018. By order dated July 24, 2019, the Supreme Court denied the motion. The plaintiffs appeal.
In order to vacate their default in opposing the defendant’s motion pursuant to CPLR 3126 to strike the complaint and the plaintiffs’ reply to the defendant’s counterclaims, the plaintiffs were required to demonstrate a reasonable excuse for their default and a potentially meritorious opposition to the motion (see CPLR 5015[a]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., Inc., 67 NY2d 138, 141; Follors v TI Ozone Park Stor., LLC, 209 AD3d 843). Here, the plaintiffs [*2]failed to demonstrate a reasonable excuse for their default in opposing the defendant’s motion (see CPLR 5015[a]; Dokaj v Ruxton Tower Ltd. Partnership, 91 AD3d 812, 814). Contrary to the plaintiffs’ contention that they were not aware that corporations must be represented by counsel pursuant to CPLR 321(a), the order dated April 18, 2018, specifically stated that counsel “is required for corporate entities.” The record reflects that the plaintiffs’ former counsel served that order upon them.”