CPLR 2026: Case of the Week #2
Second Department Explains Reasonable Excuse Requirement To Vacate A Default
Two Second Department decisions from January 14, 2026 discuss what is necessary to establish a “reasonable excuse,” the first where plaintiff defaulted in opposing a motion and the second where both parties defaulted by failing to appear at a court conference.
When a motion is granted on default, “the aggrieved party must first move to vacate the order pursuant to CPLR 2221.” See CPLR 2221(a). There is no time limit for motions to vacate or modify a court’s order. See, e.g., Wells Fargo Bank v. Wasersztrom, 233 A.D.3d 824 (2d Dep’t 2024). Horowitz & Horowitz, New York Motion Practice and Procedures § 2.14[3] (LexisNexis Matthew Bender).
However, as is often the case, CPLR rules must often be read in conjunction with another CPLR rule, and in the case of a motion to vacate a prior order based upon a default, CPLR 5015(a)(1) provides:
(a) On motion. The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of:
1. excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry[].
CPLR 5015(a)(1).
A party seeking to vacate a default must establish two elements:
A party seeking to vacate an order entered upon his or her default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion (citations omitted). The determination of what constitutes a reasonable excuse lies within the Supreme Court’s discretion, and 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 (citations omitted).
Ki Tae Kim v. Bishop, 156 A.D.3d 776 (2d Dep’t 2017).
CPLR 2005, “Excusable delay or default,” expressly permits a court to exercise its discretion in the interest of justice and accept “law office failure” to excuse a default:
Upon an application satisfying the requirements of subdivision (d) of section 3012 or subdivision (a) of rule 5015, the court shall not, as a matter of law, be precluded from exercising its discretion in the interests of justice to excuse delay or default resulting from law office failure.
In Ackerson Builders, LLC v. Corbett, 2026 NY Slip Op 00111 (2d Dep’t 2026), an action for breach of contract and to foreclose a lien, plaintiff moved for a default judgment and defendant opposed the motion and cross-moved to dismiss the complaint. When plaintiff failed to oppose the cross-motion the court dismissed the complaint and denied plaintiff’s motion for a default as academic.
Plaintiff sought leave to renew and reargue and moved to vacate the order granted on default for not opposing the cross-motion. The motion court denied plaintiff’s motion, finding that plaintiff’s “‘bare, unsubstantiated, vague claim of law office failure’ in support of the motion did not constitute a reasonable excuse for its default in opposing the cross-motion.”
In support of the motion counsel offered claims that “Unfortunately for some reason not known to me I did not receive the cross-motion made by the defendants. Motions are ordinarily emailed to the attorneys by the electronic filing system. It was only when I was checking the court site in the last day or two to see if there was any decision on the motion which I brought for the default judgment against the defendants that I saw there was a cross-motion and that this cross-motion contained critical information that was false. For this reason, I am making this motion to renew and reargue…”[i]
The Second Department affirmed:
Here, the plaintiff failed to address on appeal the Supreme Court’s determination that the plaintiff proffered only a vague and unsubstantiated excuse of law office failure for its default in opposing the defendant’s cross-motion and that such an excuse did not satisfy the requirements of CPLR 5015(a)(1).
When a party fails to appear at a scheduled court conference, Uniform Rule 202.27 provides:
At any scheduled call of a calendar or at any conference, if all parties do not appear and proceed or announce their readiness to proceed immediately or subject to the engagement of counsel, the judge may note the default on the record and enter an order as follows:
(a) If the plaintiff appears but the defendant does not, the judge may grant judgment by default or order an inquest.
(b) If the defendant appears but the plaintiff does not, the judge may dismiss the action and may order a severance of counterclaims or cross-claims.
(c) If no party appears, the judge may make such order as appears just.
In the second decision, Douglas Elliman of LI, LLC v. Baksh, 2026 NY Slip Op 00118 (2d Dep’t 2026), a breach of contract action, the parties were directed to appear for a compliance conference after the scheduled conference was adjourned by stipulation by the parties. The motion court directed that “the parties must appear for the compliance conference on September 7, 2022, advising them that there would be no further adjournments without written order of the court and that nonappearance could subject the nonappearing party to one or more of the sanctions pursuant to 22 NYCRR 202.27.” The parties again stipulated to adjourn the conference, did not appear, and the court dismissed plaintiff’s complaint:
Thereafter, the plaintiff moved pursuant to CPLR 5015(a)(1) to vacate the order dated September 7, 2022, arguing that it had a reasonable excuse for its default in appearing at the conference and a meritorious cause of action. In support of the motion, the plaintiff’s attorney asserted that the plaintiff’s failure to appear was due to its mistaken belief that the defendants’ request to the plaintiff for an adjournment resulted in an adjournment of this matter.
The motion court denied the motion to vacate, and plaintiff appealed.[ii] After reciting the requirement that plaintiff demonstrate both a reasonable excuse and a potentially meritorious claim, the Second Department readily affirmed:
Whether an excuse is reasonable is a determination within the sound discretion of the court (citation omitted), and the court has the discretion to accept law office failure as a reasonable excuse (citation omitted) where that claim is supported by a detailed and credible explanation of the default at issue (citation omitted).
Here, as the parties were on specific notice of the potential sanctions for nonappearance at the conference, the Supreme Court’s rejection of the plaintiff’s proffered excuse was a provident exercise of its discretion (citation omitted). Since the plaintiff failed to demonstrate a reasonable excuse for its default in appearing, this Court need not consider whether it demonstrated a potentially meritorious cause of action (citation omitted).
Decision Date: January 14, 2026
Practical Practice Point
Defaults are not uncommon, and occur for many reasons, some resulting from circumstances beyond the control of the party or attorney, and some the result of nothing more than neglect. Court rules and decisions recognize that some defaults should, in the interest of justice, be excused.
However, the burden is on the party seeking to vacate the default, and care must be taken to carefully, and with as much detail as possible, explain the reason for the default. As the included excerpts of the attorney affirmations demonstrate, conclusory statements or a failure to provide sufficient details are insufficient. Perfunctory references to “law office failure” will not suffice.
Guidance as to what constitutes a detailed proffer of law office failure can be difficult to locate as most decisions simply recite that the party “provided a detailed and credible explanation, without setting forth the details. Many cases where relief is granted involve miscalendaring:
The Supreme Court improvidently exercised its discretion in rejecting the plaintiff’s proffered excuse of law office failure, as the plaintiff provided a detailed and credible explanation that its approximately two-week delay in replying to the counterclaims asserted against it by the defendant Moulton Paving, LLC (hereinafter Moulton), resulted in part from its counsel’s inadvertent miscalendaring of the time to reply (citations omitted).
People’s United Bank v. Latini Tuxedo Mgmt., LLC, 95 A.D.3d 1285 (2d Dep’t 2012). See, also, Simpson v. Tommy Hilfiger U.S.A., Inc., 48 A.D.3d 389 (2d Dep’t 2008) (“The plaintiff demonstrated a reasonable excuse for his default (see CPLR 5015[a][1] ) by showing that the default resulted from the law office failure of his attorney to calendar the return date of the summary judgment motion and to serve and file opposition papers. The defendant did not show that these failures of the plaintiff’s counsel were either intentional or part of a pattern of willful default or neglect.”); Montefiore Med. Ctr. v. Hartford Acc. & Indem. Co., 37 A.D.3d 673 (2d Dep’t 2007) (“[D]efendants asserted that their default in opposing the motion for summary judgment was due to a scheduling error by their attorney’s calendar department. This was an isolated incident, and there was no evidence that the default was willful.”); Henry v. Kuveke, 9 A.D.3d 476 (2d Dep’t 2004) (“The plaintiffs’ counsel explained that after a conference on September 5, 2002, he believed that the Supreme Court had set October 30, 2002, as the deadline by which the plaintiffs’ opposition to the defendants’ motions was due . . . the default was not a lengthy one. In any event, the plaintiffs’ counsel offered a detailed and credible excuse of law office failure, which, under the circumstances, should have been deemed adequate to excuse the plaintiffs’ default.”).
While demonstrating the default was an isolated incident is helpful, courts have excused defaults which were not isolated incidents, and where the length of delay is limited, judges are more likely to vacate a default that was recognized and addressed quickly:
Under the circumstances of this case, the excuse of law office failure proffered by the defendant was reasonable (citations omitted) and was supported by detailed and credible submissions explaining the defendant’s delays in responding to the plaintiff’s discovery demands and in complying with court orders mandating discovery, as well as its failure to oppose the plaintiff’s motion to strike its answer (citations omitted). Although the defendant’s defaults were more than isolated incidents, it cannot be said, based on the evidence presented, that they constituted a pattern of willful default and neglect.
Hageman v. Home Depot U.S.A., Inc., 25 A.D.3d 760 (2d Dep’t 2006).
As with many areas of practice, specific instruction on how to establish law office failure is not possible. The sufficiency of a proffered excuse for defaulting is determined on a case-by-case determination. While there is no roadmap to establish sufficiency, highlighting the isolated nature of the default (if true), detailing why the missed deadline or appearance occurred, and setting forth the procedures that were in place to avoid a default (and how they failed), and detailing any changes to those procedures going forward and assuring the court that they are robust and will be followed in the future, are core elements. And, of course, if you have a mandatory appearance don’t for a moment think that the parties can stipulate otherwise. And unless the court’s rules specifically allow, don’t assume a stipulation between the parties will be sufficient; if the court has not acknowledged the requested adjournment, show up on time.
[i] The full, four-page affirmation can be found here: https://iapps.courts.state.ny.us/nyscef/ViewDocument?docIndex=NV3dlMu7Vx3ysexG9pEzgg==
[ii] In the Appellant Brief, counsel claimed:
“On or about September 7, 2022, Defendants’-Respondents’ counsel uploaded their fully executed stipulation of adjournment to NYSCEF. D70; R83. However, on or about September 8, 2022, Plaintiff’s-Appellant’s counsel received notice from the Court indicating that the case had been dismissed by the Court, sua sponte, pursuant to CPLR § 202.27. R9. Plaintiff’s-Appellant’s case was dismissed because Plaintiff-Appellant consented, as a matter of courtesy, to Defendants’-Respondents’ request for an adjournment. As such, Plaintiff-Appellant requested Defendants’-Respondents’ consent to restore the matter to the Court’s calendar, which Defendants-Respondents subsequently denied. It seems that professional courtesies end when one needs the courtesy. At best, Defendants-Respondents’ actions are uncourteous. At worst, Defendants-Respondents have strategically deceived Appellants into extending a favor only to get the case dismissed and maliciously injure Plaintiff. See 22 NYCRR 130-1.1(c)(2).”