A recent victory by the attorneys at Balestriere Fariello serves as an non-traditional example of the Court’s interpretation of constructive disappearance as it relates to negligence by lawyers. It is widely held that Rule 60(b) motions to vacate default judgments are among the most difficult to litigate successfully. Nevertheless, on September 28, 2011, a judge granted the Firm’s motion to vacate a $4 million default judgment which had been entered against its client while she was represented by another firm.

In seeking to vacate a default judgment, a party must show that “extraordinary circumstances justify[] relief . . . .” Trs. of Local 531 Pension Fund v. Am. Indus. Gases, Inc., 708 F.Supp.2d 272, 274 (E.D.N.Y. 2010) (internal citations omitted). A court’s consideration of a motion to vacate a default judgment should “be guided by three principal factors: (1) whether the default was willful, (2) whether the defendant demonstrates the existence of a meritorious defense, and (3) whether, and to what extent, vacating the default will cause the nondefaulting party prejudice.” New York v. Green, 420 F.3d 99, 108 (2d Cir. 2005) (internal citations omitted).

Demonstrating all three principles – along with “extraordinary circumstances” – proves an extremely high barrier for parties seeking reversal of default judgments. In effect, those seeking reversal of a default judgment must show that the failures of the attorney who represented the client at the time of the judgment were “so egregious and profound that they amount to the abandonment of the client’s case altogether, either though physical disappearance or constructive disappearance.” Harris v. United States, 367 F.3d 74, 81 (2d Cir. 2004) (internal citations omitted). Traditionally, moving out of the state or country might constitute “physical disappearance;” “constructive disappearance” has frequently been interpreted narrowly, and has generally been applied to cases where the attorney suffered from mental illness.

The Firm successfully argued to the District Court that its client’s former attorney’s conduct constituted extraordinary neglect – a non-traditional interpretation of “constructive disappearance.” Such argument was sufficient for the Court to grant the Firm’s motion to vacate, thereby substantially altering the course of the litigation.