Opinion
August 27, 1998
Appeal from the Supreme Court, New York County (Edward Lehner, J.).
Despite their knowledge that plaintiff had changed attorneys (although, concededly, a stipulation of substitution had not been filed), defendants' attorneys, in moving for summary judgment dismissing the complaint in this accountants' malpractice action, served, by mail, plaintiff's former counsel. Letters to former counsel were never received in one instance and ignored in the other. The motion was granted on default on May 19, 1997, one day before counsel received the stipulation of substitution. By letter dated May 22, 1997, defendants' attorney advised plaintiffs substituted counsel that the complaint had been dismissed and that "at no time prior to May 20, 1991 had our office been advised, in writing or otherwise, that your office had been substituted as counsel for plaintiff." This statement is contradicted by defense counsel's earlier December 10, 1996 letter to incoming counsel acknowledging that while they had been advised that he was now plaintiffs attorney, they had not been provided with a Consent to Change Attorney form. Plaintiffs May 29, 1997 motion to vacate the default premised on the aforesaid facts was denied for failure to submit an affidavit of merit. Plaintiff thereupon moved to renew, annexing an affidavit of merit with counsel's explanation that, in his "myopic zeal to demonstrate that the default was execusable", he had failed to submit an affidavit of merit. The IAS Court denied the motion, rejecting, as inadequate, counsel's excuse for not submitting an affidavit of merit on the original motion and finding, in any event, that the proffered affidavit of merit failed to set forth sufficient facts to show a meritorious claim. We reverse.
Since plaintiff provided a reasonable excuse for her default and demonstrated merit to her complaint, the renewal motion should have been granted, especially where, as here, defense counsel's correspondence shows that they served plaintiffs discharged attorney, although they had been made aware of the substitution of counsel. Even though plaintiffs present counsel contributed to the mistake by not promptly having a stipulation of substitution executed and filed, the failure to notify incoming counsel, especially in light of outgoing counsel's failure to answer defense counsel's letter or the motion, was a sufficient excuse for the default. ( See, Seashells, Inc. v. Bridge Art Prods., 172 A.D.2d 353; see also, Milona Sons v. Marshall, 159 A.D.2d 279; Lovisa Constr. Co. v. Facilities Dev. Corp., 148 A.D.2d 913.)
As to the merits, sufficient facts were shown, supported by a report submitted by a public accounting firm, to demonstrate that plaintiff incurred substantial tax liabilities with the Internal Revenue Service because of various failings on the part of defendants.
Concur — Sullivan, J. P., Rosenberger, Rubin, Williams and Mazzarelli, JJ.