Key Takeaway
CPLR 2004 motion for time extension in civil litigation - Court considers delay length, prejudice, and good cause factors in New York cases.
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.
Looking for the complete rule? This post analyzes one CPLR 2004 decision. For the full practitioner’s guide to CPLR § 2004 — the good-cause standard, leading cases, and practice pointers — see NY CPLR 2004: Extensions of Time — The New York Practitioner’s Guide.
Calderone v Molloy Coll., 2017 NY Slip Op 05932 (2d Dept. 2017)
(1)
On June 4, 2015, the return date of the NCAA’s motion, the plaintiff attempted to file a stipulation signed by the NCAA’s counsel, among others, agreeing to adjourn the return date and extend the plaintiff’s time to submit opposition papers. Later on June 4, 2015, the Supreme Court rejected the stipulation and marked the NCAA’s motion fully submitted without opposition. That night, the plaintiff’s counsel e-filed the opposition papers with the court. Four days after the return date, on June 8, 2015, the plaintiff moved, in effect, pursuant to CPLR 2004 to extend his time to submit opposition papers to the NCAA’s motion. The NCAA did not oppose the plaintiff’s motion. In an order dated June 25, 2015, the court denied the plaintiff’s motion on the ground that he failed to follow the motion schedule set by the court’s rules
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(2)
CPLR 2004 provides that, “xcept where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed.” In considering a motion for an extension of time, “the court may properly consider factors such as the length of the delay, whether the opposing party has been prejudiced by the delay, the reason given for the delay, whether the moving party was in default before seeking the extension, and, if so, the presence or absence of an affidavit of merit” (Tewari v Tsoutsouras, 75 NY2d 1, 12; see Matter of Village of Haverstraw v Ray Riv. Co., 137 AD3d 800, 801).
Here, the plaintiff established good cause for an extension of his time to submit opposition papers to the NCAA’s motion given the brief and unintentional delay, the lack of prejudice to the NCAA, the existence of potentially meritorious defenses to the NCAA’s motion, and “the policy favoring the resolution of cases on their merits” (Nikita v Parfomak, 43 AD3d 892, 893; see Matter of Village of Haverstraw v Ray Riv. Co., 137 AD3d at 801-802; Siracusa v Fitterman, 110 AD3d 1055, 1056-1057; Associates First Capital v Crabill, 51 AD3d 1186, 1188).
Accordingly, the Supreme Court improvidently exercised its discretion in denying the plaintiff’s motion, in effect, pursuant to CPLR 2004 to extend his time to submit opposition papers to the NCAA’s motion, and the order dated June 26, 2015, which consequently was entered upon the plaintiff’s default, must be vacated
The Second Department is notorious for not vacating defaults unless the “reasonable excuse” is highly detailed. The Court, as I sensed, is significantly more empathetic to a party who breaches a briefing schedule, but moves to have the paper accepted. This is significant to the practitioner that gets ensnared in one of those briefing stipulations,.
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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.
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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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