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Excuse for Default Must be More than Perfunctory at the Time of Trial (NY)

June 1, 2018

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In <a href=""><em>Cox v Marshall</em> (2018 NY Slip Op 03826)</a> the Appellate Division, Second Department affirmed the Supreme Court’s denial of the plaintiff’s motion to vacate his own default in failing to appear for trial.  In 2011, the plaintiff was allegedly injured when, while riding a bicycle in Brooklyn, he was struck by a bus owned by the defendant New York City Transit Authority and operated by the defendant Bentley Marshall.  In the summer of 2014, following one adjournment of the trial, the plaintiff’s attorney informed the plaintiff that jury selection would take place sometime that upcoming November.  The plaintiff, a jazz musician, agreed to perform a concert tour outside the State of New York around the time of trial.  Though the plaintiff had numerous conversations with his attorney several times in the three months leading up to the scheduled trial, he only informed his attorney of the scheduled tour on the day of jury selection over the phone from Mexico.
The plaintiff’s attorney instructed the plaintiff to return to New York for trial and also made several requests for an adjournment.  The Supreme Court denied these requests.  A jury was selected on the scheduled date and the court gave the plaintiff a week to return for trial.  Despite this additional week, the plaintiff failed to appear, and remained on tour.  Based on the plaintiff’s failure to appear for trial, the court directed that the action be dismissed.
In an effort to vacate his default for failure to appear at trial, the plaintiff argued that he assumed that an adjournment would be granted to accommodate his work commitment.  After the Supreme Court denied the plaintiff’s motion, the Plaintiff appealed arguing that his default should be vacated pursuant to CPLR 5015(a)(1), or, alternatively, vacated in the interests of justice.
In moving pursuant to CPLR 5015(a)(1) to vacate a default in appearing for a scheduled conference or trial, a plaintiff must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action.
The Appellate court found that despite the plaintiff’s contentions, he did not demonstrate a reasonable excuse for his failure to appear at trial, that the plaintiff’s failure to inform his attorney of the concert tour, despite their repeated communications in the weeks leading up to trial, and despite the plaintiff’s knowledge of the jury selection date, amounts to a lack of diligence and communication on the plaintiff’s part.
This case demonstrates that it is important to maintain contact with clients and for counseling of clients regarding trial attendance and consequences for failure to appear.  Thanks to Afrodite Fountas for her contribution to this post.  Please email <a href="">Brian Gibbons</a> with any questions.

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