Key Takeaway
Law office failure case where First Department found excuse reasonable for restoring dismissed no-fault action despite paralegal's misunderstanding of case status on court website.
This article is part of our ongoing defaults coverage, with 94 published articles analyzing defaults issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
I usually do not post too heavily involving issues of vacatur of defaults via law office failure. Yet, the last few no-fault cases I have seen involving this issue have me wondering whether there is a manifest double standard involving the vacatur of defaults in PIP litigation. Here is the latest law office failure case from the First Department that was excusable.
Tsioumas v Time Out Health & Fitness, 2010 NY Slip Op 08804 (1st Dept. 2010)
“Plaintiff demonstrated an intent not to abandon the action by completing initial discovery, attempting to restore the action within nine months of its being marked off the calendar, appearing at a status conference within one year of the action being marked off, stating at the status conference a need to assemble funds for a medical consult and surgery, and appearing at the next scheduled court conference held two months thereafter. In any event, once the complaint was dismissed at the February 3, 2009 court conference, plaintiff expeditiously moved to restore the action after it had been marked off the calendar. Plaintiff’s excuse for the delay in making a formal motion to restore the action was that a paralegal in plaintiff’s counsel’s office allegedly saw the case as “active” on the court’s Web site, thereby leading counsel to believe that no formal motion to restore was needed. Such law office failure may constitute a reasonable excuse for delay in moving to restore an action so as to justify the IAS court’s favorable exercise of discretion here (see e.g. Kaufman v Bauer, 36 AD3d 481 ). The court’s decision to restore the matter to the calendar was consistent with the strong judicial policy that favors determination of actions on the merits (see Matter of Lancer Ins. Co. v Rovira, 45 AD3d 417 ).
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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.
About This Topic
Default Judgments in New York Practice
Default judgments arise when a party fails to answer, appear, or respond within required time limits. Vacating a default under CPLR 5015 requires showing a reasonable excuse for the failure and a meritorious defense or cause of action. In no-fault practice, defaults occur frequently in arbitration and court proceedings, and the standards for granting and vacating defaults have generated substantial case law. These articles analyze default practice, restoration motions, and the circumstances under which courts excuse procedural failures.
94 published articles in Defaults
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Aug 5, 2011Common Questions
Frequently Asked Questions
What is a default in New York civil litigation?
A default occurs when a party fails to respond to a legal action within the required time frame — for example, failing to answer a complaint within 20 or 30 days of service under CPLR 320. When a defendant defaults, the plaintiff can seek a default judgment under CPLR 3215. However, a defaulting party can move to vacate the default under CPLR 5015(a) by showing a reasonable excuse for the delay and a meritorious defense to the action.
What constitutes a 'reasonable excuse' to vacate a default?
Courts evaluate reasonable excuse on a case-by-case basis. Accepted excuses can include law office failure (under certain circumstances), illness, lack of actual notice of the proceeding, or excusable neglect. However, mere neglect or carelessness is generally insufficient. The movant must also demonstrate a meritorious defense — meaning they have a viable defense to the underlying claim that warrants a determination on the merits.
What is the "law office failure" defense in New York?
Law office failure is a recognized basis for excusable default under CPLR 5015(a)(1). It applies when an attorney's office experiences systemic failures — such as misplaced files, missed deadlines, or administrative breakdowns — that cause a default. Courts may vacate the default if the party shows a reasonable excuse and a meritorious defense.
When will courts accept law office failure as an excuse?
Courts evaluate law office failure on a case-by-case basis. Isolated mistakes, clerical errors, or staffing disruptions may be accepted. However, repeated negligence, willful disregard of deadlines, or patterns of defaults will not be excused. The moving party must also demonstrate a meritorious defense to the underlying claim.
How do I move to vacate a default based on law office failure?
File a motion under CPLR 5015(a)(1) demonstrating (1) a reasonable excuse for the default (the law office failure) and (2) a meritorious defense to the claim. Include a detailed affidavit explaining the office failure and an attorney affirmation outlining the defense. Move promptly — delay weakens your argument for relief.
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About the Author
Jason Tenenbaum, Esq.
Jason Tenenbaum is the founding attorney of the Law Office of Jason Tenenbaum, P.C., headquartered at 326 Walt Whitman Road, Suite C, Huntington Station, New York 11746. With over 24 years of experience since founding the firm in 2002, Jason has written more than 1,000 appeals, handled over 100,000 no-fault insurance cases, and recovered over $100 million for clients across Long Island, Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, the Bronx, and Staten Island. He is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.
Jason is admitted to practice in New York, New Jersey, Florida, Texas, Georgia, and Michigan state courts, as well as multiple federal courts. His 2,353+ published legal articles analyzing New York case law, procedural developments, and litigation strategy make him one of the most prolific legal commentators in the state. He earned his Juris Doctor from Syracuse University College of Law.
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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