- Court
- New York Supreme Court, Appellate Division, Second Department
- Case
- Killeen v. Spolar
- Docket
- 2024-00064
- Filed
- May 27, 2026
- Slip Op
- 2026 NY Slip Op 03295
- Citation
- 2026 NY Slip Op 03295 (N.Y. App. Div. 2d Dep’t 2026)
Background
In April 2021, Susan Killeen commenced an action against Elya Spolar and other defendants to recover damages for alleged medical malpractice arising from physical therapy treatment provided by the defendants. The case proceeded through initial litigation stages, but in September 2022, neither party appeared at a scheduled court-ordered conference. The Supreme Court, Orange County issued an order directing dismissal of the action without prejudice as a consequence of the non-appearance.
Approximately one year later, in September 2023, Killeen moved to vacate the September 2022 dismissal order. The defendants opposed, and in an order dated December 1, 2023, the Supreme Court denied the motion. Killeen appealed from the denial.
Holding
The Appellate Division, Second Department unanimously affirmed the denial of Killeen’s motion to vacate the dismissal. The court applied the two-part test under CPLR 5015(a)(1) for vacating a default, which requires the movant to demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action. The court found that Killeen failed to meet the first prong — reasonable excuse.
The court noted that the determination of reasonableness lies within the sound discretion of the Supreme Court, and that “a claim of law office failure must be supported by a detailed and credible explanation of the default at issue, as mere neglect is not a reasonable excuse,” citing Lee v. Latendorf, 162 AD3d 1002, and Stein v. Doukas, 157 AD3d 743. Because the plaintiff’s excuse was inadequate, the court declined to address whether she had a potentially meritorious cause of action. The court also found the plaintiff’s remaining contentions without merit.
Takeaways
This decision reinforces the strict standard for vacating defaults based on law office failure. New York courts distinguish between excusable law office failure — which involves a reasonable explanation for the default — and mere neglect, which does not qualify as a reasonable excuse. Attorneys who fail to appear at court conferences must provide a detailed account of why the appearance was missed, such as a calendaring error compounded by unusual circumstances, rather than vague or conclusory claims of oversight.
The case also highlights the consequences of missing court-ordered conferences. When both parties fail to appear, courts may dismiss the action, effectively penalizing the plaintiff for the non-appearance. While such dismissals are typically without prejudice to refiling, the practical effect can be devastating if the statute of limitations has expired in the interim, as may have been the case here given the gap between the 2021 commencement date and the 2023 motion to vacate.
Practitioners should maintain rigorous calendaring systems and ensure that court appearances are not missed. If a default does occur, the motion to vacate must be made promptly and supported by a thorough and credible explanation for the failure to appear.
Why It Matters
For medical malpractice plaintiffs, this case carries a sobering message: a meritorious claim can be lost entirely due to a procedural default that cannot be adequately explained. The court’s refusal to even consider the merits of Killeen’s malpractice claim underscores that procedural compliance is a prerequisite to judicial consideration of the substantive issues.
For attorneys, the decision is a reminder that law office failure is not a blanket excuse for missed appearances. Courts require specificity and credibility, and the passage of time between the default and the motion to vacate can undermine the claim of excusable neglect. The year-long gap between the September 2022 dismissal and the September 2023 motion to vacate may have contributed to the court’s finding that the excuse was not reasonable. Prompt action after a default is essential to preserve the client’s rights and demonstrate good faith to the court.