Key Takeaway
Court denies motion to vacate no-fault insurance default judgment where provider's attorney cited heavy workload as excuse, ruling mere neglect insufficient under CPLR 5015.
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.
Hurgada Physical Therapist, P.C. v NY Cent. Mut. Fire Ins. Co., 2017 NY Slip Op 51449(U)
“In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court (Carolyn E. Wade, J.), by order entered May 2, 2011, granted, on default, defendant’s motion for summary judgment dismissing the complaint, declining to consider plaintiff’s late opposition to the motion. Plaintiff subsequently moved, pursuant to CPLR 5015 (a) (1), to vacate the order entered May 2, 2011. Plaintiff appeals from an order of the Civil Court (Wavny Toussaint, J.), entered March 6, 2012, which denied that motion.
In support of its motion, plaintiff was required to establish, among other things, a reasonable excuse for its default (see CPLR 5015 ; Eugene Di Lorenzo Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 ). Here, plaintiff failed to demonstrate that it had a reasonable excuse for failing to timely submit written opposition to defendant’s prior motion, as the excuse offered by plaintiff’s attorney was, in effect, that her late submission “was the result of her heavy workload,” which “amount to nothing more than mere neglect, which is not accepted as an excusable default” (A.B. Med., PLLC v CNA Ins. Co., 46 Misc 3d 144, 2015 NY Slip Op 50199, *1 ; see Strunk v Revenge Cab Corp., 98 AD3d 1029 ; State Farm Mut. Auto. Ins. Co. v Preferred Trucking Serv. Corp., 42 Misc 3d 88 ).”
It is one thing to give somebody enough rope to hang themselves. It is another thing to be the hangman. Invariably, in 10 situations where a case is problematic, the former will occur a few times. If I like the person or the firm, I will throw out a life raft and let them know what they did wrong so they can fix it before judgment day comes. Otherwise, I will just be there for the ride and snicker to myself. True story, really.
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Here, the plaintiff’s papers were late and I am sure counsel for Defendant was not prejudiced. I also know this particular counsel for Plaintiff will not go out his way to hurt people, so this type of behavior is troubling Yet, counsel for Defendant affirmatively screamed out that the ridiculous briefing stipulation was breached and, therefore, Defendant would object to the answering papers. Congratulations, you got a default and won on appeal. Wait until the shoe is on the other foot young man. The hangmen are waiting for you.
Related Articles
- A default that is more than meets the eyes
- CPLR 5015(a)(1) in New York Personal Injury Cases: Setting Aside Default Judgments
- Why Law Office Failure Excuses Must Be Detailed to Open Default Judgments in NY
- Trial De Novo Default Judgment NY – No-Fault Insurance Requirements
- New York No-Fault Insurance Law
Related: What “de novo” means in New York — trial de novo and de novo review, explained.
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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Aug 5, 2011Frequently Asked Questions
Common Questions About This Topic
2 answers from the firm's New York personal-injury and employment-law practice. Click any question to expand.
What is a default in New York civil litigation?
A default occurs when a party fails to respond to a legal action within the required time frame — for example, failing to answer a complaint within 20 or 30 days of service under CPLR 320. When a defendant defaults, the plaintiff can seek a default judgment under CPLR 3215. However, a defaulting party can move to vacate the default under CPLR 5015(a) by showing a reasonable excuse for the delay and a meritorious defense to the action.
What constitutes a 'reasonable excuse' to vacate a default?
Courts evaluate reasonable excuse on a case-by-case basis. Accepted excuses can include law office failure (under certain circumstances), illness, lack of actual notice of the proceeding, or excusable neglect. However, mere neglect or carelessness is generally insufficient. The movant must also demonstrate a meritorious defense — meaning they have a viable defense to the underlying claim that warrants a determination on the merits.
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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.
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.
