In this appeal concerning seeking public records pursuant to New York State's Freedom of Information Law, the New York City Fire Department [NYFD], NYFD sought to have the Appellate Division vacate its default in appearing in Supreme Court for oral argument.
The Appellate Division said FDNY was required to show it had a reasonable excuse for its default and a potentially meritorious opposition to the amended petition.
Citing HSBC Bank USA, N.A. v Hutchinson, 215 AD3d 645, the Appellate Division opined that "Where the claim is supported by a detailed and credible explanation of the default, the court may accept law office failure as a reasonable excuse". The court then opined that the ill health of the litigant's attorney is an acceptable excuse for a default and that FDNY demonstrated that its attorney failed to appear at oral argument due to illness, which was corroborated by medical documentation.
The Appellate Division noted that:
1. FDNY's attorney had notified the petitioner's attorney and the Supreme Court of her illness several hours before the scheduled oral argument;
2. Petitioner had consented to an adjournment of the oral argument; and
3. FDNY's attorney reasonably believed that her appearance was not required.
Under these circumstances, the Appellate Division ruled that Supreme Court should have granted FDNY's motion to vacate its judgment and remitted the matter to the Supreme Court for a determination of the amended petition on the merits.
Click HERE to access the decision of the Appellate Division posted on the Internet.