Counsel’s Vacation Was Not a Reasonable Excuse for Failing to Oppose a Motion

On August 5, 2026, the Second Department issued a decision in Abingdon Realty Co., LLC v. Finkelshteyn, 2026 NY Slip Op. 04828, holding that a party’s counsel being on vacation was not a reasonable excuse for failing to oppose a motion, explaining:

A party seeking to vacate an order entered upon his or her default in opposing a motion must demonstrate a reasonable excuse for the default and a potentially meritorious opposition to the motion. The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court, and the court has discretion to accept law office failure as a reasonable excuse where the claim is supported by a detailed and credible explanation of the default at issue.

Here, the defendant failed to demonstrate a reasonable excuse for his default in opposing the plaintiff’s prior motions. The defendant’s attorney sent a letter requesting an adjournment of the plaintiff’s motion, inter alia, pursuant to CPLR 3214 to compel the defendant to appear for a deposition and for sanctions, because the defendant’s attorney was on vacation from March 23, 2024, through April 2, 2024. The letter was dated 10 days after the plaintiff’s motion was served. The defendant’s assertion that his counsel needed more time to oppose the motion in light of the vacation does not constitute a reasonable excuse for his default. Since the defendant failed to establish a reasonable excuse for his default, it is unnecessary to consider whether the defendant had a potentially meritorious opposition to the motion.

The proper procedure to cure a default in opposing a motion is to move pursuant to CPLR 5015(a) to vacate the default, and, if necessary, to appeal that determination, and a motion denominated as one for leave to renew an unopposed motion may be construed as one to vacate the default. Here, the defendant failed to demonstrate his entitlement to vacatur of the order dated February 7, 2024. Accordingly, the Supreme Court properly denied that branch of the defendant’s motion which was denominated as one for leave to renew the order dated February 7, 2024, entered upon the defendant’s default.

(Internal quotations and citations omitted).

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