Summary
In Key Bank v. Lammers, 191 A.D.2d 615 (2d Dept. 1993), the Second Department reversed the trial court's order entering a default judgment, based solely on the defendant's failure to attend the initial pretrial conference, where the record suggested that the pro se defendant intended to participate in the proceedings and that her default was not intentional or the result of bad faith.
Summary of this case from MPG Assocs., Inc. v. RandoneOpinion
March 22, 1993
Appeal from the Supreme Court, Dutchess County (Benson, J.).
Ordered that the order is reversed, as a matter of discretion in the interest of justice, without costs or disbursements, and the motion is denied.
This action was initially commenced in the Civil Court, New York City but then discontinued and recommenced, by stipulation, in the Supreme Court, Dutchess County. After the pro se defendant timely served an answer, a pretrial conference was scheduled for September 26, 1990. Pursuant to court instructions, the plaintiff informed the defendant of the scheduled conference by a letter dated September 13, 1990. When the defendant failed to appear, the court directed the plaintiff to make the instant motion for leave to enter a default judgment. In opposition, the defendant submitted an affidavit stating, inter alia, that she was confused as to whether proceedings had been commenced in Dutchess County and that she was unable to attend the conference for medical reasons. The court granted the motion based solely on the defendant's "complete failure to offer a reasonable excuse" for failing to appear at the conference.
We agree with the trial court that the defendant's medical proof, consisting of two notes from doctors, was insufficient to conclusively establish that she was unable to attend the conference on the particular date in question. Nevertheless, the record suggests that the pro se defendant intended to participate in the proceedings and that her default was not intentional or the result of bad faith. Moreover, it appears that the defendant may have a colorable defense. Considering that the default was based solely on the defendant's failure to attend the initial pretrial conference, we find that the Supreme Court improvidently exercised its discretion in directing entry of a default judgment (see, Meyer v. A B Am., 160 A.D.2d 688; Mann v Mann, 149 A.D.2d 669; Du-Art Film Labs. v. Wharton Intl. Films, 91 A.D.2d 572; Conklin v. Conklin, 90 A.D.2d 817; Goldstein v Mazza, 88 A.D.2d 987; Matter of Behncke, 253 App. Div. 835). Bracken, J.P., Lawrence, Copertino and Pizzuto, JJ., concur.