Wanna know how you can avoid paying an adversary some significant dollars?
According to a recent case, you're going to have to hope and pray that your opponent's lawyer trips up and misses a filing deadline.
In Farkas v. Farkas , Chemical Bank wanted to foreclose on an equity line of credit taken on a New York City cooperative apartment which happened to be a couple's marital residence. Of course, this particular pair happened to be in the midst of an extremely acrimonious divorce proceeding.
Plaintiff Arlene Farkas moved the New York County Supreme Court for relief and was awarded a money judgment against her husband, Bruce, in the amount of $984,401.17 -- the sum the bank claimed was then due and payable.
In its decision and order (dated October 13, 2000, and entered October 17, 2000), the court directed Arlene's attorney to "settle the judgment." The problem was that it took the lawyer over four years to get that paperwork over to the court for signature.
When the lawyer finally got around to filing the documents, Bruce's attorneys objected to their untimeliness. (According to court rules, judgments must be submitted within sixty days of the entry of a court's order directing "settlement.")
Although Arlene's counsel contended that a good chunk of that time had been expended battling Chemical Bank and that, as a direct and proximate result, Bruce's exposure had been reduced from $984,401.17 to $750,000), the problem with that argument was that the case against the bank had been resolved back in August of 2003, leaving an unexplained gap of a year and nine months prior to the proposed judgment's submission to the court.
While the New York County Supreme Court found "good cause" for the delay, and signed the judgment against Bruce, last week the Appellate Division, First Department, reversed.
As far as the AD1 was concerned, an attorney's "inadvertent error" or "law office failure," is insufficient to excuse this kind of delay. And, since this particular court rule mandates that the motion or action be deemed "abandoned" in the absence of "good cause," the Appellate Division reluctantly rescinded the judgment -- wiping out that entire obligation.
Despite the "distasteful" outcome, the appellate court grappled with establishing precedent which would encourage litigants to disregard the governing procedural requirements. As noted in its decision, "if this Court will not uphold the Rules, we doubt that trial courts or practicing attorneys can be expected to do so."
A TKO?
Will the New York State Court of Appeals -- our state's highest court -- come to Arlene's rescue?
Stay tuned!
For a copy of the Appellate Division's decision, please use this link: Farkas v. Farkas