Key Takeaway
Two 2010 default decisions rejected prolonged inaction and an uncorrected filing error. Read the majority rulings, dissent and Jason's original response.
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Two 2010 decisions left defaults in place despite requests for relief. The reasons were specific: months of inaction after receipt of a lawsuit, and failure to correct a filing mistake after the clerk explained it. Jason challenged the results in the original note below.
Last reviewed: September 2026.
Historical note: These decisions assess the explanations in their records; CPLR 2005 permits discretionary relief on qualifying applications, not automatic forgiveness.
What the two courts decided
In Viviane Etienne Medical Care v Alea North America Insurance, 2010 NY Slip Op 52011(U), the administrator knew about the action in January 2007 but waited for a transferred claim file before assigning counsel. The Appellate Term reversed the order opening the default. Its concern was the prolonged inaction and failure to request an extension, not a rule that an insurer’s administrative error can never be excused.
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Astoria Wellness Medical v State Farm, 2010 NY Slip Op 52008(U), involved papers filed in the wrong Civil Court part. The majority found no adequate explanation for failing to refile after the clerk gave instructions. Justice Golia dissented, emphasizing the limited delay and lack of prejudice.
CPLR 2005 allows discretion on a qualifying application; it does not require the court to accept every law-office-failure explanation. Separate what happened, who can prove it and why the problem remained uncorrected.
Jason’s original 2010 note
Jason’s original 2010 comments follow. They record his litigation experience and disagreement with the results; the filing-part comparison is not a statement of today’s local rules.
The Appellate Division, Second Department a few years ago held in a 3-1 opinion that the concept of law office failure should be extended to insurance company delay. I guess this panel of the Appellate Term disagrees with that assertion. What I find interesting is that the legislature created CPLR 2005 to overturn Barasch v. Micucci, 49 NY2d 594 (1980).
What is interesting about this case – besides it being mine – is that every court except Brooklyn requires the cross motion to follow the main motion. I filed a cross-motion seeking discovery based relief for the reasons seen in Justice Golia’s opinion. This was filed in Part 41 because the main motion was filed in that part.
The clerk apparently rejected the motion based on the Brooklyn rule. The appearing attorney brought the cross-motion/opposition into court and sought to have it treated as opposition to Plaintiff’s motion. The court for some reason rejected it and granted Plaintiff’s motion. The rest, as they say, is history.
It is hard to believe that this was not excusable law office failure, but better minds believe otherwise.
Connect to the Encyclopedia
Start with the default judgments and law office failure guide.
- Pro-Med: an explanation unsupported by records
- Brand Medical: late opposition and delayed vacatur
- Pena-Vazquez: accepting an answer before judgment
- City Dental: a vacatur branch left undecided
For review of a particular default or missed deadline, contact the office.
Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
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