Key Takeaway
Guccione kept the conference dismissal but changed it to without prejudice. That ruling did not guarantee a timely new foreclosure action.
This article is part of our ongoing defaults coverage, with 90 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.
GMAC lost its request to reopen the case but won a correction to the dismissal: it had to be without prejudice. That correction did not decide whether another foreclosure action would be timely.
Last reviewed: September 2026.
Legal Update (September 2026): Today’s CPLR 205-a excludes specified neglect and conference-default dismissals from its six-month saving provision; Guccione’s 2015 disposition alone does not establish a right to refile.
Dismissal stayed; its effect changed
In GMAC Mortgage v Guccione, 127 AD3d 1136 (2015), counsel repeatedly missed court conferences. The Second Department upheld rejection of the law-office-failure excuse and the denial of vacatur.
Free Consultation · No Fee Unless We Win
Does this apply to your situation?
Every case is different. Get a free, confidential case review from an experienced attorney who can tell you exactly where you stand.
It nevertheless granted the request to change the dismissal from with prejudice to without prejudice. A default dismissal under 22 NYCRR 202.27 was not a determination on the merits. Repeated nonappearance did not change that conclusion in this case.
This is narrower than saying the lender could simply file again. A new action raises its own limitations and procedural questions. The current CPLR 205-a, applicable to specified real-property instruments, excludes listed neglect dismissals, including conference nonappearance, from its six-month saving provision. Whether it applies to a particular action requires the actual chronology and dismissal ground.
The 2015 opinion should therefore be read for what it decided: the effect of this conference dismissal. It did not supply a new limitations period or decide the timeliness of a later complaint.
Connect to the Encyclopedia
Start with the default judgments and law office failure guide.
- Viviane Etienne and Astoria Wellness: inaction after notice
- Josephson: proceedings after a calendar default
- City Dental: a vacatur branch left undecided
- Castaldini: cross-examination at a damages inquest
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.
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.
90 published articles in Defaults
Keep Reading
More Defaults Analysis
Civil Court shenanigans
Unique Physical Rehab vacated a preclusion order entered during an appellate stay. The opinion distinguished inherent authority from jurisdictional relief.
Apr 24, 2021
Interest of justice vacatur
New York court grants vacatur of default judgment in no-fault insurance case where claim was barred by res judicata, demonstrating interests of justice standard.
Mar 17, 2021
CPLR 2004 offers some relief to the dreaded Civil Kings motion stip
CPLR 2004 motion for time extension in civil litigation - Court considers delay length, prejudice, and good cause factors in New York cases.
Aug 7, 2017
Law Office Failure in New York: Why Repeated Calendar Errors Are Not a Reasonable Excuse
Bank of N.Y. v Mohammed: the Third Department held that calendaring the same conference wrong twice is not a reasonable excuse to vacate a dismissal.
Jul 31, 2015
District Suffolk reversed – Oral applications to vacate a default are not appropriate
Appeals court reverses district court decision allowing oral default applications, emphasizing proper motion procedures are required under CPLR 2214.
Apr 25, 2012
Claims Office Failures: When Administrative Mistakes Are Excusable Under NY Law
Urban Radiology: a lost claims file excused an unanswered suit, but only one claim reopened. Compare the peer-review proof, verification gap and later cases.
Aug 13, 2009Was this article helpful?
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.
If you need legal help with a defaults matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.
