CPLR § 5015(a)(1); (22 NYCRR) § 125.1(c); Affirmation of Engagement

CPLR § 5015(a)(1)

(22 NYCRR) § 125.1 Engagement of counsel (c)

CPLR R. 3405

Carroll v Nostra Realty Corp., 2008 NY Slip Op 07041 (App. Div., 1st)

Discovery was dragging on for several years and the Court told plaintiff to file an NOI.  After it was filed, both parties were ordered to appear on August 14th.  On that day plaintiff received an adjournment over defendant’s objection.  It was adjourned to October 12.  When October 12th came around, the plaintiff’s attorney who had previously appeared wasn’t there.  Instead, his partner appeared with an "affirmation of engagement".  That affirmation stated that he was on trial in another matter, however, as the court later found out, he was not "on trial."  Rather, he was preparing for a trial; jury selection was to start October 16.

The Court, after becoming aware of the situation, "rejected the affirmation of engagement as misleading, and dismissed this action."  Plaintiff then moved to vacate the default judgment pursuant to CPLR § 5015(a)(1) and the lower court denied the motion.

The Appellate Division agreed:

Section 125.1(b) of the Rules of the Chief Administrator of the Courts states: [*2]"[e]ngagement
of counsel shall mean actual engagement on trial or in argument before
any state or federal trial or appellate court, or in a proceeding
conducted pursuant to rule 3405 of the CPLR and the rules promulgated
thereunder."
On October 12, 2006, Mr. Gold was not actually engaged on trial or
in argument before any court, and as the record reveals, was actually
preparing witnesses on another matter. Accordingly, we reject
plaintiffs’ contention that they demonstrated a reasonable excuse for
failing to proceed to trial in this action.

While there is no express definition of the term "on trial" in
the applicable rules, it is commonly understood that a trial commences
with the selection of a jury (see Draves v Chua, 168 Misc2d 314, 315 [Sup Ct, Erie County 1996]; Wright v Centurion Investigations, Inc., 109 Misc2d 624 [Civil Court, Kings County 1981]; see also
CPL 1.20[11]). In any event, under no reasonable understanding of that
term can an attorney who is directed to appear days later to select a
jury be considered to be on trial on the day the direction is given.
Contrary to plaintiffs’ contention, an attorney is not actually engaged
on trial when he is issued a jury slip. Accordingly, Mr. Gold was not
actually engaged on trial in another matter on October 12, 2006 since
he had not commenced selecting a jury in that case.

At a minimum, even if Mr. Gold believed that he was actually
engaged on another matter, he was required to appear on October 12,
2006 on this action, and, pursuant to the Rules of the Chief
Administrator of the Courts (22 NYCRR) § 125.1(c), permit the courts to
determine which trial should proceed first.