C Castle Group Corp. v Herzfeld & Rubin, P.C., 211 AD3d 1006, 1007 [2d Dept 2022] serves as a good reminder to ask for an extension of time to respond to discovery demands, such as a notice to admit in that case, when appropriate. The court held:
CPLR 2004 provides: “Except where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed.” “In exercising its discretion to grant an extension of time pursuant to CPLR 2004, a court may consider such factors as the length of the delay, the reason or excuse for the delay, and any prejudice to the opponent of the motion” (Ibrahim v. Nablus Sweets Corp., 161 A.D.3d 961, 963, 77 N.Y.S.3d 439 [internal quotation marks omitted]; see Tewari v. Tsoutsouras, 75 N.Y.2d 1, 11–12, 550 N.Y.S.2d 572, 549 N.E.2d 1143).
Similarly, to be relieved of the adverse impact of the conditional order, a party must demonstrate “(1) a reasonable excuse for the failure to produce the requested [discovery] and (2) the existence of a meritorious claim or defense” (Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74, 80, 917 N.Y.S.2d 68, 942 N.E.2d 277; see Fortino v. Wheels, Inc., 204 A.D.3d 756, 757–758, 166 N.Y.S.3d 660). “The determination of what constitutes a reasonable excuse lies within the Supreme Court’s discretion” (Burro v. Kang, 167 A.D.3d 694, 698, 90 N.Y.S.3d 298 [internal quotation marks omitted]). “The court has discretion to accept law office failure as a reasonable excuse (see CPLR 2005) where that claim is supported by a detailed and credible explanation of the default at issue” (Scholem v. Acadia Realty L.P., 144 A.D.3d 1012, 1013, 42 N.Y.S.3d 214).
Richard A. Klass, Esq.
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Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn, New York. He may be reached at (718) COURT●ST or RichKlass@courtstreetlaw.com with any questions.
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