5015 and mere neglect

Campbell v TPK Heating, Ltd., 2020 NY Slip Op 01595 [2d Dept. 2020]

“The court has discretion to accept law office failure as a reasonable excuse (see CPLR 2005) where the claim is supported by a detailed and credible explanation of the default” (Option One Mtge. Corp. v Rose, 164 AD3d at 1252; see Seaman v New York Univ., 175 AD3d 1578Soto v Chelsea W26, LLC, 166 AD3d 1048, 1049). “However, mere neglect is not a reasonable excuse” (Seaman v New York Univ., 175 AD3d at 1579). Where a claim of law office failure is conclusory and unsubstantiated or lacking in credibility, it should be rejected (see Kondrotas-Williams v Westbridge Enters., Inc., 170 AD3d 983, 985; Lefcort v Samowitz, 165 AD3d 772, 773).

Here, the plaintiff’s unsubstantiated allegation of law office failure was insufficient to demonstrate a reasonable excuse for its default in appearing at the calendar call on March 6, 2017 (see Option One Mtge. Corp. v Rose, 164 AD3d at 1252). Moreover, the plaintiff proffers no excuse for his more than one-year delay in moving to vacate the order directing dismissal of the action and in taking any steps to ascertain the status of the case (see Diamond Truck Leasing Corp. v Cross Country Ins. Brokerage, Inc., 62 AD3d 745Edwards v Feliz, 28 AD3d 512, 513).

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