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.
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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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- Why detailed law office failure excuses are required to open default judgments in NY
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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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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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