| Chelli v Kelly Group, P.C. |
| 2009 NY Slip Op 05388 [63 AD3d 632] |
| June 30, 2009 |
| Appellate Division, First Department |
| Jorge Chelli, Respondent, v Kelly Group, P.C., et al.,Appellants. |
—[*1] The Neurolaw Trial Group at Jacoby Meyers, Newburgh (Benedene Cannata of counsel), forrespondent.
Order, Supreme Court, New York County (Walter B. Tolub, J.), entered on or aboutFebruary 19, 2009, which denied defendants' motion to vacate a default order entered five weeksearlier, unanimously reversed, on the law, the facts and in the exercise of discretion, withoutcosts, and the motion granted on condition that defendants' counsel pay the sum of $1,000 toplaintiff's counsel within 30 days of service of a copy of this order.
In light of the strong public policy of this State to dispose of cases on their merits, themotion court improvidently exercised its discretion in denying defendants' motion to vacate thedefault order (Harwood v Chaliha, 291 AD2d 234 [2002]). An order striking an answerand directing an inquest pursuant to 22 NYCRR 202.27 (a) should be vacated where a defendantcan show a reasonable excuse for failure to appear (CPLR 5015 [a]) and a meritorious defense orcounterclaim (Harwood). Here, defendants demonstrated their failure to appear wasneither willful nor part of a pattern of dilatory behavior, but was purely the result of inadvertentlaw office failure on the part of the attorneys to whom they had entrusted their defense (seeid.; Dokmecian v ABN AMRO N. Am., 304 AD2d 445 [2003]). The attorneys didnot willfully default, but despite having implemented systems to track court appearances, theyapparently were not alerted to the upcoming compliance conference (see Carela v PelhamRealty, Inc., 57 AD3d 389 [2008]; Perez v New York City Hous. Auth., 290 AD2d265 [2002]). There was no prejudice to plaintiff, as the case had not been pending long, and theparties had agreed to attempt to resolve the matter through the court-annexed mediation programshortly before counsel's inadvertent default.
Defendants also demonstrated potentially meritorious legal and factual defenses to plaintiff'sclaims, which seek to recover a total of $21 million, including disgorgement of the $4 millioncontingency fee paid upon successful resolution of plaintiff's personal injury action, trebledamages, and punitive damages. Alternatively, defendants showed that even if they violated arule governing the conduct of lawyers, they may still be entitled to recover on their quantummeruit counterclaim (see generally Matter of Cooperman, 83 NY2d 465, 475 [1994]). "Aclient should not be deprived of his day in court by his attorney's neglect or inadvertent error,especially where the other party cannot show prejudice" and his position has merit (Paoli vSullcraft Mfg. Co., 104 AD2d 333, 334 [1984]).
While defendants had a reasonable excuse for nonappearance based on law office failure,their attorneys' conduct nonetheless warrants imposition of the penalty in the amount indicatedas a condition of the reversal. Concur—Gonzalez, P.J., Friedman, Moskowitz, Renwickand Freedman, JJ. [See 2009 NY Slip Op 30359(U).]