Court Denies Motion To Vacate Decision Granting Motion To Dismiss Based On Law Office Failure

Posted: September 12, 2025 / Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner / Categories Commercial, Motion to Dismiss

Court Denies Motion To Vacate Decision Granting Motion To Dismiss Based On Law Office Failure

On July 17, 2025, Justice Joel M. Cohen denied defendant’s motion to vacate the Court’s order granting plaintiffs’ motion to dismiss the Third Amended Counterclaims in JG Group Holdings LLC v. Kahlon, Index No. 6521966/2020. Defendant sought to vacate the Court’s decision, arguing that the motion was unopposed due to excusable law office failure – specifically, mis-calendaring the filing deadline. The Court explained:

Under CPLR 5015(a)(1), the rendering court may vacate a judgment or order on the grounds of “excusable default.” Vacatur pursuant to CPLR 5015(a)(1) requires the movant to demonstrate “(1) a reasonable excuse for the default; and (2) a meritorious defense to the action” (SOS Capital v Recycling Paper Partners of PA, LLC, 220 AD3d 25, 38 [1st Dept 2023]). Defendant has failed to meet the second prong of that standard here.

“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’, but ‘[c]onclusory and unsubstantiated allegations of law office failure are not sufficient’. ‘[M]ere neglect is not a reasonable excuse’” (Hudson City Sav. Bank v Augustin, 191 AD3d 774, 775 [2d Dept 2021] [internal citations omitted]; see also Naber Elec. v Triton Structural Concrete, Inc., 160 AD3d 507, 508 [1st Dept 2018] [“Defense counsel’s inadvertent mistake in calendaring his deadline provided a reasonable excuse for the minimal delay in answering”]). Defendant has offered an affidavit from its counsel’s paralegal providing evidence of the calendaring error and how it caused Defendant’s counsel to fail to timely oppose the motion to dismiss (NYSCEF 203). Although “not particularly compelling,” Defendant provides evidence that at least arguably provides a reasonable excuse for failing to timely oppose the motion to dismiss (Marine v Montefiore Health Sys., Inc., 129 AD3d 428, 429 [1st Dept 2015]).

However, Defendant has failed to set forth facts indicating that the dismissed counterclaims are meritorious (Anamdi v Anugo, 229 AD2d 408, 409 [2d Dept 1996]). Instead, Defendant’s counsel merely asserts that “[i]f given leave to oppose, Defendant will demonstrate the sufficiency and viability of these claims” (Haft Affirm ¶ 28)[]. Such a conclusory statement is insufficient to warrant vacatur of a Court order (Miguel L. v Ashley J.L., 177 AD3d 476, 477 [1^st Dept 2019] [counsel’s conclusory statements that there is a meritorious defense to the action is insufficient to establish a meritorious defense]). Accordingly, Defendant’s motion to vacate is denied.

(footnote omitted).

Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning motions to vacate.