Jones, Wolf & Kapasi, LLC; along with co-counsel Jaffe & Velazquez, LLP; recently defeated an Order to Show Cause to vacate a default by a New York City attorney (and his law firm) (“Defendants”) wherein our client alleges Defendants absconded with the monetary proceeds of her personal injury settlement. The Court’s decision is significant as New York courts are typically liberal about vacating defaults but decided not to do so here.
On the eve of an inquest, and after purportedly attempting to settle this matter for several months, the Defendants attempted to vacate their default alleging “law office failure”. See CPLR §5015(a)(1). In order to be successful, Defendants were required to first provide a reasonable excuse for their default, and then, a meritorious defense. The Court did not even need to decide the meritorious defense prong because, as to a reasonable excuse, the Court wrote:
“Moreover, considering that Defendants were represented by counsel and they themselves are attorneys, undercuts their arguments that their failure not to file a timely answer or at a minimum file opposition to Plaintiffs application for default was not willful and their bare and unsubstantiated assertions of law office failure are insufficient to establish a reasonable excuse for the default…
… The affirmation and affidavits in support do not purport that their failure to file a timely answer or file opposition to Plaintiffs default judgment was inadvertent. In fact, Defendants and its counsel were aware of the pending lawsuit and it appears they took the informed tactical decision not to file an answer or file opposition to Plaintiffs application for default and instead chose to negotiate a settlement.”
Our client is represented by Benjamin J. Wolf of Jones, Wolf & Kapasi, LLC; and Diego Velazquez of Jaffe &Velazquez, LLP. The case is Neely v Scott A. Felicetti, The Felicetti Law Firm et al, Index No. 29170/2018 (Sup. Ct. Bronx County, January 24, 2019) and the Decision and Order can be read here.
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