In King v. Daniel Shoes, No. 13080/12, 2018-10611, 2020 N.Y. Slip Op. 01151, 2020 WL 808729 (N.Y.A.D. 2 Dept., Feb. 19, 2020) – a sexual harassment/hostile work environment case – the Appellate Division affirmed a lower court’s award of a default judgment against defendants on the issue of liability pursuant to 22 NYCRR 202.27(a) and setting the matter down for an inquest on damages.
The court summarized the facts culminating in the trial court’s award of a default judgment:
The action was placed on the trial calendar and jury selection was scheduled for October 11, 2017. On October 2, 2017, the defendants’ attorney sought to adjourn the scheduled jury selection date from October 11, 2017, to November 6, 2017. The court accommodated the attorney’s request to the extent of avoiding the specific days upon which he was unavailable, but the court refused to delay the case another month, and scheduled jury selection for October 4, 2017. The court advised the attorneys that there would be no further adjournments for any reason, except for a medical or personal emergency.
On the morning of October 4, 2017, the defendants’ attorney of record failed to appear, and instead sent a per diem attorney on his behalf only to obtain an adjournment. The per diem attorney did not provide an affirmation of engagement of the defendants’ attorney of record, but sought an adjournment on the ground that the defendants’ attorney was not prepared for trial in the case. The trial judge telephoned the defendants’ attorney from the bench, and informed him that unless an attorney appeared for the defendants ready to commence jury selection by 11:45 a.m., the court would enter a default against the defendants and set the matter down for an inquest on the issue of damages. The defendants’ attorney stated that he would send an attorney to commence jury selection by 1:00 p.m. Although the court and the plaintiff’s counsel waited until 1:00 p.m., no one appeared on the defendants’ behalf to commence jury selection. In an order dated October 4, 2017, the court, in effect, awarded judgment in favor of the plaintiffs and against the defendants on the [*2]issue of liability pursuant to 22 NYCRR 202.27(a), and set the matter down for an inquest on the issue of damages.
The defendants moved, pursuant to CPLR 5015(a)(1), to vacate the October 4, 2017 order, asserting that they had a reasonable excuse for their default and a meritorious defense to the action.
The court summarized the relevant law, noting that “defendants were required to demonstrate both a reasonable excuse for the default and a potentially meritorious defense” and that “[w]hether an excuse is reasonable is a determination within the sound discretion of the Supreme Court.” [Citations omitted.]
Applying the law, the court held that “[u]nder the circumstances, the court did not improvidently exercise its discretion in concluding that defendants failed to demonstrate a reasonable excuse for their default in appearing ready to proceed with trial” and that, in light of that failure, it need not consider whether defendants established a meritorious defense.