Cafferty v. Thomas, Collison & Place

• Decision Date: 26 April 2001
• Citation: 723 N.Y.S.2d 722,282 A.D.2d 959
• Parties: PETER G. CAFFERTY et al., Respondents,<BR>v.<BR>THOMAS, COLLISON & PLACE et al., Appellants, et al., Defendant. (And Two Third-Party Actions.)
• Court: New York Supreme Court — Appellate Division

282 A.D.2d 959

723 N.Y.S.2d 722

PETER G. CAFFERTY et al., Respondents,

v.THOMAS, COLLISON & PLACE et al., Appellants, et al., Defendant. (And Two Third-Party Actions.)

Lahtinen, J.

Decided April 26, 2001.

Crew III, J. P., Peters, Mugglin and Rose, JJ., concur.

Lahtinen, J.

In March 1997, plaintiffs commenced a legal malpractice action (hereinafter action No. 1) against defendant Richard F. Place, his former legal partnership, defendant Thomas, Collison & Place, and a successor legal partnership, defendant Thomas, Collison & Meagher (hereinafter collectively referred to as defendants). Defendants appeared, answered and commenced a third-party action against plaintiffs' then-attorney and a number of his former attorneys. Due to jurisdictional and Statute of Limitations concerns, plaintiffs commenced a second action (hereinafter action No. 2) seeking the same relief against the same defendants and adding an additional malpractice claim against another former attorney. Defendants moved to dismiss action No. 2 resulting in an order dismissing action No. 1 and consolidating the third-party action commenced in action No. 1 with action No. 2.

Various procedural difficulties, not relevant to this appeal, followed and in March 1999 plaintiffs' present attorney served defendants' attorneys with a notice to take the oral deposition of Place on April 26, 1999. Place could not be located by his attorneys and did not appear. Attempts to reschedule Place's deposition for June 1999 were again thwarted by the failure of defendants' counsel to locate Place, prompting plaintiffs' CPLR 3126 motion for, inter alia, a default judgment. Supreme Court granted plaintiffs' motion for a default judgment, finding that Place's "repeated failures to appear for deposition, as well as his failure to communicate even with his own attorneys, indicates willful behavior indicative of lack of intent to defend the action." About two weeks after Supreme Court's order granting the default judgment, Place was located and agreed to appear for his deposition and cooperate in the defense of the primary action. A subsequent motion by defendant for leave to renew plaintiffs' motion for a default judgment or, alternatively, to vacate the default judgment was denied. Defendants appeal from both orders.

In order to invoke the drastic remedy of granting a default judgment against a party on a motion made pursuant to CPLR 3126, the moving party must make a clear showing of willfulness or bad faith (see, Shapiro v Rose Textiles Indus., 195 AD2d 935, 935-936). We are of the opinion that plaintiffs have sustained their burden in this regard and affirm the orders of Supreme Court.

Plaintiffs' CPLR 3126 motion was supported by the affidavit of plaintiffs' counsel which contained unrefuted allegations that Place "is failing to maintain contact with his attorneys" and such "breach of his duty to remain in contact with his attorneys" should not be excused since he once "practiced law with success and local acclaim." The affidavit was critical of the efforts of Place's counsel to locate him and was supported by numerous exhibits attached thereto which provided support for plaintiffs' allegations.

Turning to the disclosure sanctions provided by CPLR 3126, we note that "[t]he law is settled that an action should, if at...