It is always ironic when mistakes happen in a legal malpractice case, which itself is about mistakes made in litigation. Mrkulic v Peters 2023 NY Slip Op 31012(U)
March 30, 2023 Supreme Court, Kings County Docket Number: Index No. 505025/2020
Judge: Debra Silber is no exception.

“This is a legal malpractice action which arises from a personal injury action plaintiff
brought in the past, Mrkulic v Platinum Z, Inc. d/b/a Zen Palate, et al, under Index Number 2307/2012. On July 20, 2021, plaintiff’s attorney served notice of entry by e-filing in NYSCEF of the court’s decision on Motion Sequence #1, defendants’ pre-answer motion to dismiss. The court (J. Velasquez) denied defendants’ motion to dismiss, but did not specify a time for defendants to answer the complaint.
On November 9, 2021, plaintiff filed Motion Sequence #2, a motion for a default judgment order against defendants as they had not answered. Defendants then
electronically filed an answer on February 12, 2022, before plaintiff’s motion was scheduled to be heard. On February 15, 2022, plaintiff’s attorney e-filed a letter rejecting the answer as untimely. On February 16, 2022, plaintiff’s motion for a default judgment was called on an in-person motion calendar and submitted to the court (J. Velasquez), without any written opposition, and was then granted on defendant’s default by order dated March 1, 2022.

However, the court did not issue the usual default judgment order, which essentially
finds for the plaintiff on the issue of liability and requires an inquest on damages. Instead, the court issued an order which granted plaintiff permission to enter a money judgment for the amount demanded in the complaint, which is the amount of the money judgment which had been entered after an inquest in the 2012 action against the tortfeasors, but does not state (it is not clear if it could in fact so state) that the sum is owed jointly and severally with the defendants/judgment debtors in the 2012 action.
In addition, this is not really an action for a sum certain, and the amount defendants may owe plaintiff for the alleged legal malpractice is not a liquidated sum. The order directs the clerk to enter judgment against defendants for $255,405.86 plus interest from December 17, 2012, “the amount of the judgment order by the Hon. Peter P. Sweeney, J.S.C. Kings County, Index No. 2307/2012 on May 13, 2013” [Doc 36].”

” Now, defendants move, in Motion Sequence #3, to vacate their default in opposing
the plaintiff’s motion for a default judgment. Defendants are plaintiff’s former lawyer and his law firm. The affirmation in support is defective, because when an attorney represents himself, he must provide an affidavit and not an affirmation (see Slavenberg Corp. v Opus Apparel, Inc, 53 NY2d 799 [1981], citing Schutzer v Suss-Kolyer, 57 AD 2d 613). However the court finds that, in this case, this technicality should be overlooked in the interests of justice. See CPLR §2001. Defendant Peters sets forth a reasonable excuse for his default, and he had filed an answer to the complaint, albeit late, but before the default judgment order was issued. As we were in the midst of the Covid-19 Pandemic during the time period of these prior motions, it has been the general policy of this court to try not to default attorneys who have personal or family medical issues and thus request to appear virtually, and to accommodate their requests for virtual appearances. Further, the amount of plaintiff’s damages are not ascertainable on papers, and defendants are entitled to a trial.”