Legal Malpractice

Problem after Problem in Legal Malpractice Litigation

By (Andrew Lavoott Bluestone)

It is said that problems, or bad things, come in threes.  In this example, the client lost a contract action, in which he had good counterclaims, because of his attorney's failures.  Plaintiff then sues the attorney, and in Benson Park Assoc., LLC v Herman ;2010 NY Slip Op 03847 ;Decided on May 6, 2010 ;Appellate Division, First Department  the defendant attorney defaulted on an answer.  Then, the attorney for defendant apparently defaulted on the motion for partial summary judgment itself.
"In the underlying action, defendant failed timely to file an answer on behalf of plaintiff, and a default judgment was entered against it (Mega Constr. Corp. v Benson Park Assoc. LLC, 60 AD3d 826 [2d Dept 2009]).

A party seeking to vacate a judgment on the basis of excusable default must demonstrate both a reasonable excuse and a meritorious defense (Mutual Mar. Off., Inc. v Joy Const. Corp., 39 AD3d 417, 419 [2007]). The court properly denied defendant's third request for an adjournment of plaintiff's motion for
partial summary judgment (see Matter of Desmond K. v Kevin K., 59 AD3d 240 [2009], lv denied 12 NY3d 711 [2009]; Treppeda v Treppeda, 212 AD2d 592 [1995]). While in support of the motion to vacate the default, defendant claimed that he had had a "previously scheduled engagement," he offered nothing to substantiate this claim. Moreover, at no time after the motion for partial summary judgment was submitted did defendant seek leave to submit opposition. In addition, defendant failed to offer a meritorious defense to the malpractice claim, other than to question the amount of damages. "

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Full post as published by New York Attorney Malpractice Blog on May 07, 2010 (boomark / email).