Failure Of Plaintiffs To Appear At Conference Results In Dismissal

Posted: December 29, 2025 / Written by: Jeffrey M. Eilender, Joshua Wurtzel, Samuel L. Butt, Thomas A. Kissane, Channing J. Turner / Categories Commercial, Default

Failure Of Plaintiffs To Appear At Conference Results In Dismissal

On November 11, 2025, in Penske v. National Holding Corp., Index No. 655002/2022, Justice Andrea Masley dismissed plaintiffs’ complaint due to their failure to appear at a conference. The court had granted the motion by plaintiffs’ prior counsel to be relieved in August. The Court set a conference for August 26, 2025, to confirm that the corporate plaintiff had retained counsel and whether the individual plaintiff would represent himself. The Court explained:

22 NYCRR § 202.27 provides that:

“[a]t any scheduled call of a calendar or at any conference, if all parties do not appear and proceed or announce their readiness to proceed immediately or subject to the engagement of counsel, the judge may note the default on the record and enter an order as follows:…

(b) If the defendant appears but the plaintiff does not, the judge may dismiss the action and may order a severance of counterclaims or crossclaims;

…

22 NYCRR § 202.27(b) permits the court to dismiss the action if defendant appears at a conference and plaintiff does not. The court may also order a severance of any counterclaims. (22 NYCRR § 202.27[b].) Accordingly, the complaint is dismissed and Moving Defendants’ counterclaims against United Atlantic Capital, LLC, Penske, and Pope are severed.

However, because § 202.27 does not provide for the entry of default on a defendant’s counterclaims if a plaintiff fails to appear, defendants were required to move for default under CPLR § 3215 with respect to their counterclaims.

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