Key Takeaway
Brand Medical's late opposition and unexplained ten-month delay defeated vacatur. The court did not reach the merits of its proposed opposition.
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.
Brand Medical’s opposition was eleven days late. The provider then waited about ten months to ask the court to vacate the resulting default order. The Appellate Term found the explanation for the first delay insufficient and the second delay unexplained.
Last reviewed: September 2026.
Historical note: Brand applies CPLR 5015(a)(1) to two inadequately explained delays; the opinion does not create a guarantee that prompt vacatur or lack of prejudice will excuse missed briefing dates.
The explanation the court actually considered
In Brand Medical Supply v Praetorian Insurance, 2016 NY Slip Op 50961(U), a stipulated schedule required opposition by March 18, 2012. The provider served it on March 29. The court declined to consider the papers and granted the insurer’s medical-necessity motion on default.
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Counsel later said the non-treating expert’s affirmation had not become available until shortly after the opposition deadline. The Appellate Term found that explanation insufficient. Counsel also gave no reason for waiting until March 22, 2013 to seek vacatur of the May 18, 2012 order.
Even though the vacatur motion was unopposed, the applicant still had to establish entitlement to relief under CPLR 5015(a)(1). The appellate court did not reach whether the proposed opposition had merit because the excuse failed.
Jason disagreed with the handling of the briefing schedule. His view about prejudice and what a prompt motion might have achieved was commentary, not a finding that earlier filing would necessarily have produced reversal.
Jason’s original 2016 note
Jason’s original 2016 critique follows. The six-week interval and the prediction about reversal are his account and assessment, not additional appellate findings.
This case is a prime example of why mechanistic adherence to the “briefing schedule” is insane. Papers were 11 days late, argument was 6 weeks later and the Court declined to consider the papers. I think that is wrong. There was no prejudice and another game of “i gotcha” occurred.
That all being said, I can’t help but think that if Plaintiff moved ASAP after it got hit with the briefing schedule loss, the Appellate Term would have reversed.
I just don’t see the prejudice if the papers are served in accordance with the CPLR.
Connect to the Encyclopedia
Start with the default judgments and law office failure guide.
- City Dental: a vacatur branch left undecided
- Viviane Etienne and Astoria Wellness: inaction after notice
- Pena-Vazquez: accepting an answer before judgment
- Pro-Med: an explanation unsupported by records
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
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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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