“strategy, not law office failure”

Soto v Chelsea W26, LLC, 2018 NY Slip Op 08170 [2d Dept. 2018]

The Supreme Court providently exercised its discretion in rejecting the plaintiff’s excuse of law office failure based on the disputed allegation that the per diem attorney hired by the plaintiff’s attorney did not appear on the return date. Regardless of whether the per diem attorney appeared on the return date, the evidence submitted by the plaintiff in support of his motion demonstrates that the plaintiff’s attorney made a conscious decision to send a per diem attorney on the motion’s return date to attempt to resolve the motion by stipulation rather than file and serve any papers in opposition. Plaintiff’s counsel’s decision not to oppose the motion constituted a strategy, not law office failure, and thus was not a reasonable excuse (see Hudson City Sav. Bank v Bomba, 149 AD3d 704, 705; Bank of N.Y. Mellon v Colucci, 138 AD3d 1047, 1048; White v Daimler Chrysler Corp., 44 AD3d 651, 652; Everything Yogurt v Toscano, 232 AD2d 604, 606).