PALLACI v. ALBIN (2008)

Plaintiffs commenced their respective actions seeking damages arising from a motor vehicle accident.   Supreme Court sua sponte struck defendant's answers, ordered that judgments be entered on behalf of plaintiffs, and ordered inquests on damages, based on the failure of defendant's attorney to attend a pretrial conference as well as the prior alleged collective conduct of other attorneys in the law firm of defendant's attorney in connection with litigation unrelated to the instant matter.   We agree with defendant that the court erred in denying his motions to vacate the orders entered in each action and to reinstate his answers.   The record establishes that the court acknowledged that the failure of defendant's attorney to appear at the pretrial conference was the result of a miscommunication with the court concerning the conference and that the orders were based upon prior alleged conduct of other attorneys in the law firm of defendant's attorney.   There was thus no showing that the failure of defendant's attorney to appear at the pretrial conference was willful or contumacious (see Forman v. Jamesway Corp., 175 A.D.2d 514, 515-516, 572 N.Y.S.2d 782;  Roof v. Bogdanski, 174 A.D.2d 1046, 572 N.Y.S.2d 825;  see generally Gadley v. U.S. Sugar Co., 259 A.D.2d 1041, 1042, 688 N.Y.S.2d 350), and it cannot be said that the failure of defendant's attorney to appear at the pretrial conference amounts to a default (see 22 NYCRR 202.27;  see generally O'Brien v. Occidental Chem. Corp. [Appeal No. 3], 266 A.D.2d 915, 698 N.Y.S.2d 200;  Gadley, 259 A.D.2d at 1042, 688 N.Y.S.2d 350). We cannot condone the court's action in deeming defendant in default in these actions based on the alleged conduct of other attorneys in the law firm of defendant's attorney in matters unrelated to this litigation (see generally American Audio Serv. Bur. Inc. v. AT & T Corp., 33 A.D.3d 473, 476-477, 823 N.Y.S.2d 25;  Travelers Ins. Co. v. Abelow, 14 A.D.3d 395, 786 N.Y.S.2d 915;  Fink Weinberger v. Rosenkrantz, 252 A.D.2d 368, 675 N.Y.S.2d 537).

Even, assuming, arguendo, that there was a default, we would nevertheless conclude that the court should have granted defendant's motions because defendant's attorney offered a “reasonable excuse” for his failure to appear at the pretrial conference (Leone v. Esposito, 299 A.D.2d 930, 931, 749 N.Y.S.2d 924, lv. dismissed 99 N.Y.2d 611, 757 N.Y.S.2d 821, 787 N.E.2d 1167), as well as a meritorious defense to the actions (see Dokmecian v. ABN AMRO N. Am., 304 A.D.2d 445, 758 N.Y.S.2d 638;  Perez v. New York City Hous. Auth., 290 A.D.2d 265, 736 N.Y.S.2d 29).

It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the motions are granted, the orders entered May 16 and 31, 2006 are vacated and the answers are reinstated.

MEMORANDUM: