Martin v Claude Castro & Assoc. PLLC 2023 NY Slip Op 50099(U) Decided on February 9, 2023 Supreme Court, New York County Lebovits, J. illustrates the wide breadth and strength of the attorney-judgment rule in legal malpractice.

“This is a legal-malpractice action. Defendants, Claude Castro and Associates PLLC, Claude Castro, Esq., and Daniel Paul Martin…

Gerzog v Goldfarb 2022 NY Slip Op 04120 [206 AD3d 554] June 28, 2022 Appellate Division, First Department discusses the fiduciary duties an accountant may have to its client.

“Plaintiff was an attorney at the law firm of nominal defendant Goldfarb & Gerzog. He claims that he and defendant Goldfarb were partners at the firm…

The issue of the reach of a post-answer CPLR 3211 motion and whether it should have been brought as a CPLR 3212 motion came up in an accounting malpractice case in Pioneer Bank v Teal, Becker & Chiaramonte, CPAs, P.C. 2022 NY Slip Op 22316 [77 Misc 3d 360] October 4, 2022 Platkin, J. Supreme…

In Fierro v Yellen 2022 NY Slip Op 32959(U) August 31, 2022 Supreme Court, Kings County Docket Number: Index No. 523796/2021 Judge: Ingrid Joseph, a case that wended its way through Kings Supreme, and on to the Second Department, everyone in the proceedings take fluid positions on whether there was fraud, whether there was a…

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…

Darby Scott, Ltd. v Michael S. Libock & Co. LLC CPAs 2022 NY Slip Op 06746 [210 AD3d 582] November 29, 2022 Appellate Division, First Department discusses the question of continuous representation tolls to the statute of limitations in accounting malpractice cases. Often, the statute is calculated by reference to tax filings and tax years. …

Judiciary Law 487 claims, along with all other claims were dismissed in this claim of extortion, fraud and deceit and defamation case. in Murphy v Kozlowska 2022 NY Slip Op 32947(U) September 2, 2022 Supreme Court, New York County Docket Number: Index No. 150978/2022 Judge: Lisa S. Headley discussed the case allegations.

“On February 2…

In what appears to be an attorney v. attorney case, which asks for Prima Facie Tort and Judiciary Law 487, Defendant failed to answer. Supreme Court forgave. The Appellate Division did not.

“The plaintiff commenced this action to recover damages for prima facie tort and violation of Judiciary Law § 487. After the defendant failed to timely answer the complaint, the plaintiff moved pursuant to CPLR 3215 for leave to enter a default judgment against the defendant upon her failure to answer the complaint or for a hearing on the issue of any reasonable excuse [*2]offered by the defendant. The defendant cross-moved, inter alia, to compel the plaintiff to accept her late answer. The defendant separately moved pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred. In an order entered February 16, 2018, the Supreme Court denied the plaintiff’s motion, in effect, granted that branch of the defendant’s cross motion which was to compel the plaintiff to accept her late answer, and granted the defendant’s separate motion pursuant to CPLR 3211(a)(5) to dismiss the complaint.

Thereafter, the plaintiff moved for leave to renew and reargue its motion and its opposition to the defendant’s cross motion and separate motion. In an order entered March 25, 2019, the Supreme Court denied the plaintiff’s motion.

The plaintiff appeals from the orders entered February 16, 2018, and March 25, 2019, respectively.

“A defendant who has failed to timely answer a complaint and who seeks leave to file a late answer must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action” (Bank of Am., N.A. v Viener, 172 AD3d 795, 796; see Jacobson v Val, 206 AD3d 803, 804). To avoid the entry of a default judgment upon the failure to answer the complaint, a defendant must make a similar showing (see Sadowski v Windsor Vil. Apts. Co., LLC, 200 AD3d 816, 817; Yuxi Li v Caruso, 161 AD3d 1132, 1133). “Whether a proffered excuse is reasonable is a sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits” (Nowakowski v Stages, 179 AD3d 822, 823 [internal quotation marks omitted]; see Jinwu Yu v Hong Qin Jiang, 205 AD3d 1012, 1013).

Here, the defendant failed to provide a reasonable excuse for her delay in answering the complaint, as her claims that her and her counsel’s respective medical issues prevented her from timely answering the complaint were vague and unsupported by any medical documentation (see PennyMac Corp. v Sellitti, 193 AD3d 959; Dankenbrink v Dankenbrink, 154 AD3d 809, 810; Salatino v Pompa, 134 AD3d 692, 693). Since the Supreme Court should not have granted that branch of the defendant’s cross motion which was to compel the plaintiff to accept her late answer, the defendant’s separate motion pursuant to CPLR 3211(a)(5) to dismiss the complaint was untimely, as a defendant must make this motion before service of the responsive pleading is required (see id. § 3211[e]; Wan Li Situ v MTA Bus Co., 130 AD3d 807, 808). Accordingly, the court should have granted that branch of the plaintiff’s motion which was pursuant to CPLR 3215 for leave to enter a default judgment against the defendant upon her failure to answer the complaint, denied that branch of the defendant’s cross motion which was to compel the plaintiff to accept her late answer, and denied the defendant’s separate motion pursuant to CPLR 3211(a)(5) to dismiss the complaint.”Continue Reading What Happens When An Attorney Fails To Answer a Complaint?