A pro se plaintiff who brought a malpractice action against his former Manhattan employment lawyer failed to show a reasonable excuse for defaulting on that lawyer's motion to dismiss where he relied on his “optimistic belief that the court would grant his eleventh hour request for an extension of time” to file opposition papers, an appeals court has ruled.

An Appellate Division, First Department panel has also found that the lower court's denial of plaintiff Bijan Karimian's request for a time extension was proper because Karimian's “proffered excuse” for waiting until the last minute to request the extension—that he thought the opposition-papers deadline had been indefinitely postponed pending his motion to seal the court file—was “belied by the record.”

The unanimous panel further noted that “plaintiff's status as a self-represented litigant does not alter” the analysis that Karimian never showed a reasonable excuse for his default.

Efforts to reach Karimian for comment Monday were not successful.

Panel Justices John Sweeny, Dianne Renwick, Troy Webber and Jeffrey Oing wrote that in Karimian's legal malpractice lawsuit against employment attorney Stewart Karlin of the Stewart Lee Karlin Law Group, he was aware that the defendants had refused to consent to any further extension of time, beyond Oct. 13, 2017, for the filing of his opposition.

“Nevertheless, [Karimian] waited until October 13 to request an extension of time” for filing, and he made that request, the justices noted, in an order to show cause submitted to Manhattan Supreme Court Justice Richard Braun that sought to have the case file sealed.

Karimian “recognized that his opposition papers would not be completed by the deadline, but, instead of submitting incomplete papers, he chose to rely on his optimistic belief that the court would grant his eleventh hour request for an extension of time,” the justices wrote.

Braun struck Karimian's extension of time “relief”—or request—when he ruled on the order to show cause, the justices said.

They also pointed out that “other events that plaintiff claims sowed confusion in his mind occurred after the deadline for filing opposition papers had passed.”

In their June 27 opinion, the justices further noted that Karimian had “failed to demonstrate a meritorious defense to the motion to dismiss.”

“He failed to show that his legal malpractice claims premised on defendants' representation of him in the United States District Court for the Southern District of New York [in his employment termination-focused lawsuit against Time Equities] were not time-barred,” the justices said. They added that he also “failed to show that his breach of fiduciary duty claims were not time-barred.”

“Although his legal malpractice claims premised on defendants' representation of him in the United States Court of Appeals for the Second Circuit arguably were timely and not barred by collateral estoppel, plaintiff failed to show that defendants' alleged failures caused him to lose on that appeal,” the panel also wrote.

Karlin's lawyer in the legal malpractice suit, attorney Aaron Barham at Furman Kornfeld & Brennan, pointed out in an interview Monday that Karlin had given Karimian two stipulated time extensions for filing his opposition papers during the litigation.

According to court records and Barham, later in the litigation a separate justice also ruled that that the malpractice claims lacked merit based on reasons including the statute of limitations having run out and collateral estoppel.

“We are pleased with the result, and we agree with the First Department decision that the claims against our client lacked merit,” Barham said. We “also agree that Karimian failed to demonstrate a reasonable excuse for the default,” he added.

The panel's decision affirmed a 2018 ruling by Manhattan Supreme Court Justice W. Franc Perry, who denied Karimian's motion to vacate Braun's prior order.