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Keywords

plaintiffattorneyliabilitymotionwillplaintiff's attorney
defendantattorneywill

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Leary v. Pou Poune, Inc., 273 A.D.2d 8, 708 N.Y.S.2d 108, 2000 N.Y. Slip Op. 05399

Facts

The case arose from a premises liability action where the landlord, Hoskob Associates, failed to file an answer due to the neglect of its attorney. The plaintiff was granted a default judgment, prompting the landlord to file a cross-motion to vacate the default. The court noted that the landlord's attorney's dereliction was the cause of the failure to respond, and there was no evidence of willfulness or abandonment on the part of the landlord.

The failure to file an answer was clearly due to the derelictions of Hoskob's attorney.

Issue

Whether the default judgment against Hoskob Associates should be vacated despite the attorney's egregious neglect.

Whether the default judgment against Hoskob Associates should be vacated despite the attorney's egregious neglect.

Rule

A default judgment may be vacated if there is a lack of prejudice to the plaintiff and a showing of a meritorious defense, even in cases of egregious law office failure.

Upon a showing of a lack of prejudice and a meritorious defense, a default judgment may be vacated and the action restored despite the existence of egregious law office failure.

Analysis

The court applied the rule by examining the circumstances surrounding the attorney's neglect and the lack of prejudice to the plaintiff. It determined that the landlord had a meritorious defense based on its status as an out-of-possession landlord and that the failure to file an answer was not indicative of abandonment or willfulness. The court concluded that the default judgment should be vacated to allow the landlord its day in court.

The failure to file an answer was clearly due to the derelictions of Hoskob's attorney. The record rebuts the presumption of abandonment or willfulness on the part of defendant.

Conclusion

The court reversed the lower court's order, vacated the default judgment, and restored the action, contingent upon the landlord's attorney paying $1,000 to the plaintiff's attorney.

Accordingly, vacatur of the default is proper.

Who won?

Hoskob Associates prevailed in the case as the court granted their cross-motion to vacate the default judgment, allowing them to proceed with the case despite their attorney's neglect.

Hoskob should not be deprived of its day in court by its attorney's neglect.

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