FLANNERY v. Gary M. Axenfeld, Esq., Defendant-Appellant. (2000)

Order, Supreme Court, New York County (Lorraine Miller, J.), entered June 3, 1998, which, to the extent appealed from as limited by the briefs, granted plaintiffs' cross motion for leave to enter a default judgment against defendant Axenfeld, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, and the cross motion denied.   Appeal from order, same court and Justice, entered September 29, 1998, which denied defendant Axenfeld's motion for reargument, unanimously dismissed, without costs, as taken from a non-appealable order.

 The motion court erred in granting plaintiffs' cross motion for a default judgment in this legal malpractice action.   Plaintiffs' service of the cross-motion one day before the return day of the motion date and the court's decision of the cross motion seven days before the date it was deemed submitted violated the requirements of CPLR 2215 and 2219(a), respectively, and unfairly prejudiced and precluded defendant-appellant's ability to respond.

 In any case, plaintiffs failed to establish that they suffered any prejudice from defendant-appellant's delay in complying with the court's orders to file an answer and provide discovery.   Moreover, the record shows that the delay was not willful and emanated from the fact that co-defendant/counsel apparently withheld information from and misinformed defendant-appellant about the status of the proceedings until May 1998.   Finally, defendant-appellant should not have been found in default of the motion court's April 6, 1998 order, which directed that he file his answer by April 30, 1998.   In this regard, plaintiff served the order with notice of entry by regular mail on April 28, 1998 and it was not received until May 7, 1998, a week after the answer was due.

MEMORANDUM DECISION.