- Court
- New York Supreme Court, Appellate Division, Second Department
- Case
- Tulloch v. Barka
- Docket
- 2024-00794
- Filed
- May 27, 2026
- Slip Op
- 2026 NY Slip Op 03330
- Citation
- 2026 NY Slip Op 03330 (N.Y. App. Div. 2d Dep’t 2026)
Background
Elena Tulloch and her husband commenced an action to recover damages for personal injuries Tulloch allegedly sustained in a motor vehicle accident. The defendants moved for summary judgment dismissing the complaint on the ground that Tulloch did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The parties executed a stipulation extending the plaintiffs’ deadline to oppose the motions until April 18, 2022. The plaintiffs failed to file opposition papers by the extended deadline, and the Supreme Court, Kings County granted the defendants’ unopposed motions in June 2023.
The plaintiffs subsequently moved to vacate the default under CPLR 5015(a)(1), asserting law office failure as the reason for not filing timely opposition. The Supreme Court denied the motion, and the plaintiffs appealed.
Holding
The Appellate Division, Second Department affirmed the denial of the motion to vacate. The court applied the two-part test requiring a showing of both a reasonable excuse for the default and a potentially meritorious opposition. The court found that the plaintiffs’ counsel’s claim of law office failure — that the firm’s office “inadvertently calendared the return date of the defendants’ motions one week later than the actual return date” — was insufficient. The court characterized this as “vague and conclusory allegations of law office failure” that did not constitute a reasonable excuse.
The court also noted that the stipulation between the parties “explicitly set forth the deadline for the plaintiffs to file their opposition papers,” making the calendaring error particularly inexcusable. When a specific deadline has been negotiated and memorialized in a stipulation, counsel’s failure to accurately calendar that date reflects “mere neglect” rather than excusable law office failure.
Takeaways
This decision reinforces the strict standard for vacating defaults based on law office failure, particularly when the default involves a missed deadline set by stipulation. Courts distinguish between excusable law office failure — which might include, for example, a sudden staff emergency that disrupted operations — and mere calendaring errors, which reflect the kind of routine negligence that does not warrant relief. The more specific and documented the deadline (as in a written stipulation), the less likely a court will accept a calendaring error as a reasonable excuse.
The case also demonstrates the serious consequences of failing to oppose a serious injury threshold motion in a no-fault automobile accident case. If the motion is granted on default, the plaintiff loses the ability to recover non-economic damages entirely, and vacating the default requires clearing the reasonable excuse hurdle — a showing that many plaintiffs cannot make.
Why It Matters
For personal injury practitioners, this case is a stark reminder that missed deadlines in no-fault threshold motions can be case-ending. The serious injury threshold is a critical issue in New York automobile accident litigation, and failure to oppose a defendant’s summary judgment motion on this issue — even through inadvertence — can result in permanent dismissal that cannot be undone. Law firms should implement robust calendaring systems with multiple reminders, particularly for stipulated deadlines that cannot be extended without the opposing party’s consent.