The Stress of Bar Association Activities Sufficient to Support the Defense of Law Office Failure

• Posted on: Feb 12 2025

By: Jeffrey M. Haber

Now and then a lawyer fails to meet a deadline or otherwise acts untimely.  Several “saving” provisions in the Civil Practice Law and Rules (“CPLR”) are available to assist a lawyer when deadlines are missed. These include: CPLR 2005, CPLR 3012(d), and CPLR 5015(a). The key to applying one or more of these provisions is the reasonableness of the excuse for the delay or default. 

In Fox v. Gross, 219 A.D.3d 584, 585-586 (2d Dept. 2023), the Appellate Division, Second Department, discussed the standard that courts should apply when considering what constitutes reasonable excuse:

To avoid dismissal of an action for failure to serve a complaint after a demand for the complaint has been made pursuant to CPLR 3012 (b), a plaintiff must demonstrate both a reasonable excuse for the delay in serving the complaint and a potentially meritorious cause of action. The determination of what constitutes a reasonable excuse for a delay in serving a complaint after a demand is made is within the discretion of the court. When exercising its discretion in this regard, a court should consider all relevant factors, including the extent of the delay, the prejudice to the opposing party, and the lack of an intent to abandon the action.[1]

There are many cases like Fox that consider the meaning of “reasonable excuse” and/or excusable “law office failure.” Today, we examine one such case. Shapiro v. 151 Baltic St., LLC, 2025 N.Y. Slip Op. 50135(U) (Sup. Ct., Kings County Feb. 6, 2025) (here).

[Eds. Note: this blog previously examined law office failure and reasonable excuse, here.]

Shapiro contained “a unique set of facts” for which the motion court could not “locate [any] authority” having the same or a similar fact pattern.[2]

Plaintiffs brought the action by filing a summons with notice in July 2023, alleging harassment and violations of the New York City Administrative Code by Defendants. Plaintiffs alleged that they were the last few remaining tenants in a multi-family residential building in Brooklyn, N.Y. that was undergoing gut renovation.

In August 2023, Defendants served a demand for a complaint. Not having received a complaint by the 20-day deadline prescribed in CPLR 3012 (b), Defendants moved for dismissal of Plaintiffs’ claims in September 2024. Plaintiffs cross-moved pursuant to CPLR 3012 (d) to extend their time to serve and file the complaint.

Plaintiffs’ counsel claimed law office failure as the reason for Plaintiffs’ default in serving and filing the complaint. Plaintiffs’ counsel maintained that he was consumed with his service as President of the New York State Bar Association and, prior thereto, as President-Elect, in addition to having tried to settle the matter with opposing counsel.

Defendants rejected counsel’s position, arguing that counsel’s failure to serve a complaint was not due to inadvertent law office failure, but rather due to counsel’s choice to elevate his bar association activities above his professional responsibilities.

The court denied the motion to enter a default judgment.

Noting that it “was unable to locate authority regarding the impact of a bar association’s President’s duties on his legal practice in terms of meeting deadlines,”[3] the court held that the “mental stress of exercising one’s responsibilities as President and President-Elect of a large state’s bar association” sufficed to show reasonable excuse for a default.[4] The court reasoned that the situation before it was similar to cases in which “an attorney’s mental health condition ha[d] been accepted as a reasonable excuse for a default.”[5] As such, the Court concluded that “[t]he mental stress of exercising one’s responsibilities as President and President-Elect of a large state’s bar association is no less an excuse than another attorney’s mental health condition.”[6]

The court also found “that other factors weigh[ed] in favor of excusing [the delay], such as the “unique circumstances” of the case, the “understandably embarrassing” situation plaintiff’s counsel found himself in, and the fact that counsel was a solo practitioner.[7]

Moreover, the court held that “there was no intent on the part of Plaintiffs or their counsel to abandon the action, in that there were settlement discussions.”[8] The court found that the delay was neither willful nor prejudicial.[9]

Finally, the court took a practical approach to the issue, noting that even if it “were to grant Defendants’ motion to dismiss the complaint, Plaintiffs’ claims could be revived under CPLR 205 (a).”[10] Additionally, noted the court, “[t]he statute of limitations would not pose a bar” to refiling the complaint.[11] The court explained that “[r]ecommencing the action would only result in more delay in resolving the underlying dispute — both for the parties and indeed for the Court.”[12] Thus, concluded the court, “[i]t [was] far preferable that the dispute be resolved on the merits within the instant action.”[13]

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Jeffrey M. Haber is a partner and co-founder of Freiberger Haber LLP. This article is for informational purposes and is not intended to be and should not be taken as legal advice.

[1] Slip Op. at *1-*2 (citations and internal quotation marks omitted).

[2] Id. at *2.

[3] Id. at *3.

[4] Id.

[5] Id. (citation omitted).

[6] Id. (citation omitted).

[7] Id. (citation omitted).

[8] Id.

[9] Id.

[10] Id.

[11] Id. at *3-*4.

[12] Id. at *4.

[13] Id.