Motion Return Date Adjournments in New York Courts – Expert Legal Guidance

Last reviewed: September 2026

Appearing on an adjourned return date does not undo a missed deadline for written opposition. In Counsel Financial Services, the defendants received additional time, filed no opposition within that time and then asked for another adjournment. The Fourth Department upheld the refusal.

Historical note: Counsel Financial Services, LLC v David McQuade Leibowitz, P.C., 67 AD3d 1483 (4th Dept, November 20, 2009) concerns a CPLR 3213 motion and the particular default record before the court. It does not establish a statewide ban on second adjournments. The CPLR 2004 guide explains the current good-cause framework.

What happened on the return dates

The plaintiff sought summary judgment in lieu of complaint on a promissory note and personal guarantee. Only its lawyer appeared on the initial return date. The court nevertheless gave the defendants additional time to serve opposition and set a later return date.

The defendants missed the extended opposition deadline. Counsel appeared on the adjourned return date and requested a second adjournment to prepare papers. The court treated the defendants as already in default and granted the motion.

On appeal, the Fourth Department noted that the plaintiff had supplied the note, guarantee and evidence of default. It affirmed the judgment and rejected the challenge to refusal of another adjournment. The defendants could not use the appeal to make a collateral challenge to the merits of the claim they had defaulted in opposing.

The procedural problem was therefore not simply that a lawyer appeared without being ready to argue. A court-directed period for submitting opposition had expired without the papers being submitted.

Jason’s original November 2009 reaction

The following is the original commentary. The opinion expressly permitted review of the contested issue despite the default; the suggestion about a motion to vacate is Jason’s assessment of litigation strategy.

A few things are noteworthy here. First, it seems that Defendant should have probably moved on notice to vacate the default as opposed to attempting to vacate the default through appealing the order that resulted from the hearing. Second, it seems that the Fourth Department really has taken, at least in this case, a really tough line on parties who are not ready on motion return dates.

Read CPLR 3213 before borrowing an ordinary motion schedule

CPLR 3213 permits a qualifying action on a money-only instrument or judgment to begin with a summons and summary-judgment motion instead of a complaint. Its timing provisions connect the minimum hearing period to the time for appearance under CPLR 320(a), depending on the method of service.

That is why this case should not be used as an ordinary CPLR 2214 deadline calculator. Identify the kind of motion first. Then read the summons, notice, proof of service and any scheduling orders together.

The statute also addresses when answering papers may be required before an extended hearing date. A return date and an opposition deadline are related dates, but they are not necessarily the same date. An adjournment order should be read for what it actually changes.

A practical calendar entry should identify the source of each date: the statute, the served notice, a written order or a recorded direction. If two documents appear inconsistent, seek clarification promptly. Do not silently choose the later date because it is more convenient.

Why ordinary motion intervals are not a CPLR 3213 calculator

For ordinary noticed motions, CPLR 2214(b) provides an eight-day notice period and a two-day answering-affidavit interval. When a notice served at least sixteen days before the hearing demands it, answering affidavits and cross-motion papers are due at least seven days before, with reply or responding affidavits at least one day before.

Those intervals illustrate why an opposition deadline can precede the return date. They are not a complete calculation for every motion: the procedure, method of service, applicable timing rules and any valid court direction must be checked. In particular, CPLR 3213 contains the separate commencement-and-answering framework discussed above.

When a return date is moved, read the adjournment direction for its treatment of opposition and reply. Record any new dates expressly stated. If the direction only moves the hearing, do not invent a revised briefing schedule and attribute it to the court. Ask for clarification through the applicable procedure. The point of the calendar review is to identify the operative direction before the next deadline, not reconstruct an assumed extension after it has passed.

What a request for more time should supply

CPLR 2004 permits extensions for good cause where another law does not expressly foreclose them. It allows an application before or after a deadline, but it does not grant relief merely because the request was filed.

Explain the missed act and why it was not completed. Account for what happened during any extension already granted. If opposition is now ready, identify the proposed submission and request permission to serve or have it considered. If it is not ready, identify the work still required and a realistic completion date.

Address prejudice with facts. Would the adversary need additional time to respond? Would the requested schedule affect a trial date or other pending matter? A proposal that gives both sides a usable briefing schedule is more informative than a general appeal to fairness.

These are drafting considerations, not a guarantee that an application will succeed. The second request in Counsel Financial failed after the defendants had already missed the extra time provided. The opinion should prompt an explanation of the prior delay, not a prediction that a different judge will be more accommodating.

Appearing, opposing and obtaining relief are different acts

An appearance tells the court that a party is participating. Opposition papers provide the grounds and evidence for resisting a motion. A request for an adjournment asks the court to change the schedule. Completing one act does not necessarily complete the others.

That distinction is useful when explaining a motion to a client. A lawyer’s attendance alone does not show that the required papers were timely served. Conversely, the fact that an adversary defaulted does not excuse checking whether the movant supplied the proof needed for the relief requested.

Elusma v Jackson illustrates that latter point on a different summary-judgment record. There, the moving defendants’ own proof failed to eliminate factual disputes. The late opposition did not determine the result. In Counsel Financial, the opinion expressly found the initial showing sufficient.

A default needs its own procedural analysis

CPLR 5511 generally bars a defaulting party’s appeal from the default judgment or order. The court in this case reviewed the issue contested at the adjourned appearance. That limited review is not the same as obtaining a merits rehearing of the entire motion.

CPLR 5015(a) separately identifies grounds for relief from a judgment or order. Excusable default is one ground, not a description of every possible application. Jurisdictional and other specified grounds require their own analysis.

So for a current case, identify the order or judgment that was entered, what was contested, when notice of entry was served, and what type of relief you are seeking. And don’t assume that merely asking for a new return date also vacates an existing judgment or protects an appeal deadline.

Reviewing a missed motion deadline

Keep the served motion, proof of service, scheduling orders, correspondence, proposed opposition and resulting judgment together. They show what was due and what relief may still be useful. For a procedural issue in an injury case, see the firm’s personal injury practice or contact the office. This note is a historical explanation, not a determination of a current deadline.

Connect to the Encyclopedia

The CPLR 2004 extensions-of-time hub groups these different exercises of discretion.

• Elusma: inadequate excuse, but an independently deficient motion
• Mallards Dairy: permission and a reply opportunity for late expert proof
• Middle Village: why the trial-adjournment request failed
• Brooklyn Chiropractic: a specific witness-availability proposal
• Normandin: a brief continuance during a medical malpractice trial
• V.S. Medical: limited appellate review of a contested adjournment condition