Law Office Failure

A missed calendar entry was enough in Faragalla because counsel explained the mistake and the defendants showed a potentially meritorious defense. This collection follows the different problems that arise when a party misses a deadline, seeks judgment or asks to reopen a case.

Last reviewed: September 2026.

Still current (September 2026): Law office failure requires a supported explanation; JPMorgan Chase Bank v Reinhold, 2026 NY Slip Op 02636, rejected an unsupported claim that prior counsel had misled the defendants.

Case Background

In Bank of N.Y. Mellon v Faragalla, 174 AD3d 677 (2019), the defendants neither opposed the bank’s summary-judgment motion nor appeared on its return date to request an adjournment. Their attorney had instructed a legal assistant to calendar the date, but the entry was never made.

The Second Department granted the branch of their motion seeking to vacate that default. It accepted the calendaring explanation and found a potentially meritorious limitations defense. The court did not finally decide that the foreclosure was time-barred or find that checking calendar entries imposed an unrealistic burden.

Jason’s original 2019 note

It is not every day the Second Department outlines the law office failure that is deemed excusable. Sadly, this happens to many all too frequently.

The passage Jason quoted from the opinion:

“Under the circumstances presented here, the appellants set forth a reasonable excuse for their failure to appear at the centralized motion part of the Supreme Court on the return date of the plaintiff’s motion based on evidence of law office failure. In an affirmation, the appellants’ attorney explained that upon receiving the plaintiff’s motion, he directed his office’s legal assistant to note the return date of the motion on the office calendar, but that the return date had not been noted on the calendar. In addition, the appellants demonstrated a potentially meritorious defense based upon the statute of limitations”

Which procedure is involved?

CPLR 2005 permits courts to excuse law office failure on a qualifying application. CPLR 3012(d) addresses extensions to appear or plead; CPLR 5015 addresses relief from a judgment or order. Start with the order and the relief actually sought.

CPLR 317 has separate service, nonreceipt, merit and timing requirements. CPLR 3215 governs obtaining a default judgment, including proof, notice and proceedings within one year. A problem with entry is not necessarily a jurisdictional defect. The archive separates those issues below.

Latest developments

Amondi v Promise Home Care Agency, 2026 NY Slip Op 03754, accepted a detailed explanation for a missed appearance on a renewed vacatur application after the first was denied without prejudice. The plaintiff also showed potentially meritorious claims.

In contrast, Reinhold rejected the conclusory account of counsel’s conduct. Shoo-In v Rivera, 2026 NY Slip Op 02079, rejected the explanation for a five-year delay in pursuing default judgment. Neither decision sets a fixed number of mistakes that courts will forgive.

An earlier connection is Singh v Sukhu, 180 AD3d 834 (2020). It cited Faragalla when accepting counsel’s explanation that a calendar service had not communicated a briefing date; potentially meritorious opposition was also shown. Jason’s calendar-service note records that dispute.

Frequently asked questions

What is the “law office failure” defense in New York?

CPLR 2005 permits a court to excuse law office failure on a qualifying application under CPLR 3012(d) or 5015(a). It is an explanation for delay or default, not a defense to the underlying claim. Relief is discretionary.

When will courts accept law office failure as an excuse?

The court needs a detailed, credible explanation, not a label. Faragalla accepted the missed calendar entry together with a potentially meritorious limitations defense; it did not finally decide the foreclosure was time-barred or endorse a flawless calendar system. Reinhold rejected an unsupported account of counsel’s conduct.

How do I move to vacate a default based on law office failure?

The order and requested relief determine the procedure. For excusable default under CPLR 5015(a)(1), explain the default and show potential merit. The statute also imposes a one-year limit tied to service with notice of entry, or entry if the moving party entered the order. Other grounds, including CPLR 317 and jurisdictional relief, have different requirements.

Cases in this topic

These 83 linked notes and the Faragalla note above make up this 84-post collection, published from 2009 through 2022. The dates below are original publication dates. The linked posts record historical decisions and commentary; their outcomes depend on the record and procedural posture. Read them alongside the current statutes and later decisions above.

Calendar errors and explanations from counsel

• Singh: a briefing date the calendar service did not communicate — 2020-02-14
• Premier Surgical: an insufficient explanation and an unbriefed service argument — 2018-03-07
• Longevity Medical: excuse and meritorious opposition remain separate — 2017-02-02
• Scholem: affidavits describing an associate’s deception — 2016-11-28
• Rivera: a particularized explanation for missed email — 2016-09-16
• Santiago: medical evidence and an unsuccessful adjournment request — 2015-02-12
• Madonna Management: communications during a change of counsel — 2014-12-29
• Rosenblatt: a detailed account of errors and a late answer — 2014-11-14
• D & R Medical: vacatur after a missed briefing date — 2012-05-05
• A.B. Medical v GLI: explaining the per-diem assignment procedure — 2009-11-26

Unexplained delays and repeated neglect

• New Age Medical: a wrong index number and a year without correction — 2020-03-08
• Tri-State: unsubstantiated explanations for default — 2018-12-18
• Hurgada: workload offered to explain late opposition — 2017-11-04
• Clinton Place: a pattern of neglect — 2017-04-06
• The Civil Kings briefing schedule: late opposition and a later vacatur motion — 2016-06-27
• Imovegreen: repeated inaction by counsel — 2016-05-24
• A.B. Medical v CNA: workload and delay in seeking vacatur — 2015-03-19
• Viviane Etienne and Astoria Wellness: delays after notice of a problem — 2010-11-27

Claims offices, nonreceipt and insurer communications

• Cautious Care: receipt procedures and records of other lawsuits — 2021-08-21
• Shy: admissible proof of notifying the insurer — 2019-08-04
• Renelique: affidavits supporting a denial of receipt — 2019-08-04
• Pro-Med: a vacatur application without records or personal knowledge — 2018-02-08
• Two claims-office errors: forwarding the summons and default motion — 2017-06-10
• Gecaj: relying on an insurer after receiving a default motion — 2017-05-06
• ALFA Medical: the wrong office’s procedures and a delayed answer — 2016-06-27
• IDS: mail procedures in an arbitration-review proceeding — 2016-02-03
• Gershman: CPLR 317 despite an insufficient CPLR 5015(a)(1) excuse — 2014-12-29
• Nursing Personnel: nonreceipt and CPLR 317 — 2010-03-18
• Westchester Medical: knowledge of the receiving office’s procedures — 2010-01-09
• Urban Radiology: a misplaced claims file — 2009-08-13

Choosing the vacatur procedure

• Civil Court shenanigans: vacatur of an order made during a stay — 2021-04-24
• New Age Acupuncture: a prior Supreme Court order and substantial justice — 2021-03-17
• K.O. Medical: requesting vacatur after judgment has been entered — 2017-06-10
• Li Xian: an incorrect representation about the known service address — 2015-03-23
• Gurin: inherent power to vacate an individual judgment — 2013-12-08
• Taveras: showing that the vacatur motion was timely — 2013-06-20
• City Dental: a vacatur branch left undecided — 2013-04-05
• State Farm v Young: an oral request to open a default — 2012-04-25
• Friendly Physician: vacatur rather than renewal or reargument — 2010-10-18
• A.M. Medical: intrinsic fraud and the explanation for default — 2010-10-18

Proof for entry and the merits of opposition

• AK Global: staged-accident proof on default — 2022-03-19
• Intentional-accident allegations and corroborating proof on default — 2021-06-04
• Market Street Surgical: the plaintiff’s missing meritorious opposition — 2020-02-01
• Global Liberty v Haar: proof on a trial-de-novo default application — 2019-04-01
• GEICO v Sullivan: proof of liability under CPLR 3215(f) — 2017-04-11
• Cary: personal knowledge on an application for default judgment — 2015-05-28
• Delta Diagnostic: MVAIC’s proposed residency defense — 2014-08-20
• Manhattan Telecom: deficient CPLR 3215(f) proof and an entered judgment — 2013-06-01
• Eagle Surgical: conditional relief and proof of the claim — 2011-08-05
• Omega Diagnostic: MVAIC’s Insurance Law section 5214 argument — 2011-05-18
• Gerdes: vacatur and the rear-end-collision defense — 2010-06-18
• Balance Chiropractic: proof from a third-party billing company — 2010-05-23

Notice, clerk applications and inquests

• Castaldini: cross-examination at a damages inquest — 2020-09-25
• Freedom Chiropractic: notice of the default motion — 2020-06-30
• Diagnostic Medicine: notice of the application and the underlying default — 2020-02-01
• Citimortgage v Gill: appellate relief on an ex parte application — 2018-10-10
• Gantt: a defect in the nonmilitary-service affidavit — 2016-06-03
• HSBC v Wielgus: the terms needed for a clerk’s settlement judgment — 2015-08-24
• Paulus: notice to a defendant who appeared — 2015-04-14

Proceedings within one year: CPLR 3215(c)

• CPLR 3215(c) and 5015(a): Jason’s jurisdictional question — 2022-02-18
• Josephson: taking proceedings after a calendar default — 2018-07-21
• Linden Equipment: an excuse for delayed default proceedings — 2015-10-30
• Edison Medical: a timely but unsuccessful default application — 2015-05-04
• Acupuncture Works: abandonment and the explanation for delay — 2014-10-28
• DJS Medical: delayed entry and the court’s inherent power — 2013-12-19

Late answers before judgment

• P&H Painting: the significance of a short delay — 2020-02-06
• Naber Electric: an affidavit of merit before a default order — 2018-04-14
• American Transit v Baucage: rejecting a late answer by moving — 2017-01-10
• M&E 73-75: nonreceipt and permission to answer — 2014-10-28
• Metro Property: extending the time to answer — 2014-09-24
• Pena-Vazquez: settlement discussions and an extension to answer — 2011-04-05
• Lamar: law office failure on an application to answer late — 2009-12-04

Conference, trial and conditional-order defaults

• City Chiropractic: substitution of counsel and a trial default — 2020-02-01
• MAPFRE v Callahan: absence when the hearing was called — 2018-09-15
• SZ Medical: trial readiness and delay in seeking vacatur — 2018-04-14
• Anikeyeva: a conditional discovery order becomes absolute — 2015-08-10
• Bank of N.Y. v Mohammed: the same calendaring error twice — 2015-07-31
• GMAC v Guccione: conference dismissal without prejudice — 2015-05-04
• Farrell Forwarding: the effect of a conference dismissal — 2014-08-06
• Rally Chiropractic: a miscalendared compliance conference — 2012-02-28
• Tsioumas: efforts to restore a case marked off the calendar — 2010-11-30
• Goodwin: a missed preliminary conference during a family illness — 2010-11-29
• Chechen and Lamar: the setting and detail of the excuse — 2009-12-12

Connect to the Encyclopedia

Return to the Legal Encyclopedia for the other procedural topics. Related default notes:

• Madonna Management: communications during a change of counsel
• Premier Surgical: explaining the default and preserving a service argument
• Santiago: a refused adjournment and missing opposition
• Clinton Place: a pattern of neglect
• ALFA Medical: claims-office knowledge and delay
• DJS Medical: late default proceedings and inherent vacatur power
• Singh: the calendar service’s uncommunicated briefing date
• Paulus: notice of the application after a defendant has appeared

For advice about a particular missed deadline or default, contact the office.