Law Office Failure in New York: Why Repeated Calendar Errors Are Not a Reasonable Excuse

Court Rejects “Two Strike” Pattern of Calendar Errors

When attorneys repeatedly make the same procedural mistake, courts lose patience quickly. This Third Department decision demonstrates that making identical calendar errors twice can doom any attempt to vacate a dismissal, regardless of other factors in the case.

The case involves a fundamental principle in New York civil practice: when a case gets dismissed for failure to appear, the moving party must show both a reasonable excuse for the absence and a potentially meritorious underlying claim. While proving merit might be straightforward, establishing a “reasonable excuse” requires more than simple human error—especially when that error becomes a pattern.

This decision aligns with other rulings where courts have scrutinized attorney conduct more closely. As we’ve seen in cases where default judgments face various challenges, the standard for excusing procedural failures continues to tighten.

The Decision: Bank of N.Y. v Mohammed

Bank of N.Y. v Mohammed, 2015 NY Slip Op 06397 (3d Dept. 2015)

“We affirm. In order to vacate a dismissal pursuant to 22 NYCRR 202.27, plaintiff was required to demonstrate a reasonable excuse for its failure to appear and a potentially meritorious cause of action (see 9 Bros. Bldg. Supply Corp. v Buonamicia, 106 AD3d 968, 968 ; Biton v Turco, 88 AD3d 519 ). Here, the excuse proffered by plaintiff for failing to appear at the two conferences — that counsel calendared the conference on the wrong date — is not a reasonable excuse, especially in light of the fact that counsel committed the same error twice”

Vacating a Dismissal Under 22 NYCRR 202.27

Some procedural background puts the holding in context. Under 22 NYCRR 202.27, when a party fails to appear at a scheduled court conference or calendar call, the court may dismiss the action (if the plaintiff defaults) or grant judgment (if the defendant does). The dismissal is not necessarily the end of the case — the defaulting party may move to vacate — but the motion must satisfy a familiar two-prong test: a reasonable excuse for the nonappearance, and a potentially meritorious cause of action or defense.

The two prongs are conjunctive. The strongest case on the merits will not save a movant who cannot explain the absence, and the most sympathetic excuse will not revive a claim with no apparent merit. In practice, the “reasonable excuse” prong is where these motions are won and lost.

New York law is not unforgiving on this point. CPLR 2005 expressly permits courts, in their discretion, to excuse delays and defaults resulting from “law office failure” — the umbrella term for clerical mistakes, miscommunications, and calendaring errors inside a law firm. But the statute makes law office failure excusable, not automatically excused. Whether a particular failure qualifies is committed to the court’s discretion, and courts expect a detailed, credible explanation of what went wrong — not a conclusory invocation of the phrase.

Why “Two Strikes” Changes the Analysis

A single, isolated calendaring mistake — promptly discovered, candidly explained, and quickly remedied — is the paradigm of excusable law office failure. What sank the plaintiff here was repetition: counsel calendared a conference on the wrong date, and then, after that failure, committed the same error for the second conference.

The Third Department’s reasoning is instructive. One wrong entry can be an accident; two identical wrong entries look like a system that does not work. Repetition converts the narrative from excusable human error into evidence of inadequate office procedures — and courts will not exercise their CPLR 2005 discretion to insulate a firm from the predictable consequences of broken systems. Hence the informal “two strike rule” of the title: the second identical mistake is, as a practical matter, the one the courts will not forgive. The same pattern appears in decisions like the one we covered on two consecutive errors disallowing vacatur of a default, and in cases where a proffered reasonable excuse was simply not upheld.

What Practitioners Should Take Away

For lawyers, the prescriptions are concrete. Maintain redundant calendaring — at minimum, independent entry of court dates by the handling attorney and by staff, with electronic reminders. When a date is missed, move immediately; delay in seeking vacatur compounds the excuse problem. And when drafting the motion, support the excuse with a specific, sworn account of how the error occurred and what has been changed to prevent recurrence. A court asked to exercise discretion wants assurance that the failure was an aberration.

For clients — including the insurers and medical providers who populate high-volume no-fault dockets, where conference calendars are crowded and appearances are easy to lose track of — the decision is a reminder that procedural defaults can extinguish substantive rights. A meritorious claim or defense can die at a missed conference, and the courthouse door does not reopen just because the merits were strong.

Related Resources

• Law Office Failure — our cluster hub on the doctrine and the case law applying it
• The firm’s Legal Encyclopedia — explainers on defaults, vacatur, and New York motion practice
• No-Fault Insurance Defense — our practice page
• 2 consecutive error disallow default vacatur
• Excusable neglect not acceptable