1. Identify the Default Order Affecting Your Claim
A default judgment usually concerns a defendant who failed to respond or appear. A plaintiff who misses a conference or fails to proceed at trial may instead face dismissal on default. The written order determines what you must challenge and what relief to request.
Default Dismissal and a Decision on the Merits
Under 22 NYCRR 202.27(b), a court may dismiss an action when the defendant appears at a scheduled conference or calendar call and the plaintiff fails to appear and proceed. Attendance alone may not suffice if the plaintiff refuses to proceed.
This differs from losing after the court decides contested legal or factual issues. In civil litigation, the dismissal order, transcript, and docket identify the applicable remedy. Discovery sanctions and other dismissal grounds may require a different analysis.
A Separate Judgment on a Counterclaim
An order may dismiss your complaint and award judgment against you on a defendant’s counterclaim. Your application must address each affected ruling. Restoring the complaint alone may leave the counterclaim judgment unresolved.
2. Grounds and Evidence for Vacating a Default
For ordinary excusable-default relief under CPLR 5015(a)(1), a plaintiff generally must establish both a reasonable excuse and a potentially meritorious cause of action. A strong claim does not replace an adequate explanation for the default.
Explain Why You Missed Court
A supporting affidavit or affirmation should explain what happened, when it happened, and why it prevented attendance or readiness. Medical documentation, calendar records, and correspondence may support the explanation.
CPLR 2005 permits courts to excuse defaults resulting from law office failure, but relief remains discretionary. Identify the specific error, corrective steps, and reasons for any delay in seeking relief. Simply blaming an attorney may be insufficient.
Support the Underlying Claim
Present facts supporting the claim’s legal elements. Depending on the dispute, relevant materials may include contracts, photographs, medical records, witness statements, or deposition testimony.
Organize the civil litigation evidence around what the plaintiff must establish. The motion is not a full trial, but repeating unsupported allegations may not demonstrate potential merit.
| Issue | Supporting Records |
|---|---|
| Reason for the default | Medical records, calendar entries, correspondence |
| Notice of the appearance | Scheduling orders, mailing records, electronic notifications |
| Potential merit | Fact-based statements and relevant claim documents |
| Application timing | Entered order, notice of entry, proof of service |
Reason for the default
- Supporting RecordsMedical records, calendar entries, correspondence
Notice of the appearance
- Supporting RecordsScheduling orders, mailing records, electronic notifications
Potential merit
- Supporting RecordsFact-based statements and relevant claim documents
Application timing
- Supporting RecordsEntered order, notice of entry, proof of service
Address Missing Notice Separately
Not receiving actual notice of a conference or hearing date differs from knowing the date but missing court. Without actual notice, courts may find that no valid default occurred, making the ordinary merit showing unnecessary.
Support the notice argument with facts about the recipient, address, delivery records, and communications. A bare denial of receipt may not suffice. This issue differs from a defendant’s challenge to service of the summons and complaint.
3. Filing Deadlines and the Motion Process
Under CPLR 5015(a)(1), the usual deadline is one year after service of the judgment or order with written notice of entry. If the moving party entered the judgment or order, the year runs from entry. Prompt action also matters when the court evaluates discretionary relief.
Check the Ground and Starting Date
Review the notice of entry and proof of service rather than assuming the dismissal date starts the year. Other vacatur grounds require separate timing analysis; the one-year rule does not govern every application.
CPLR 317 addresses certain defendants who did not receive timely notice of the summons. Its deadlines are not the general deadlines for restoring a plaintiff’s dismissed claim.
Apply to the Court That Issued the Ruling
CPLR 5015 directs the application to the court that rendered the judgment or order. Identify the ruling, legal ground, supporting facts, and requested relief.
Depending on court rules and circumstances, use a notice of motion or order to show cause. Request vacatur, restoration to the appropriate calendar, and necessary scheduling relief. Follow filing and service requirements. Filing the application does not itself cancel the dismissal.
4. Appealing a Denial and Returning to Litigation
CPLR 5511 generally bars a party from directly appealing a judgment or order entered on that party’s own default. The usual route is to request vacatur first, then assess an appeal from the denial order.
Build the Record before Appealing
An appeal generally examines whether the court properly denied vacatur. Submit the relevant explanation and evidence during the motion proceedings because appellate review ordinarily relies on that record.
Under CPLR 5513(a), the usual appeal period is 30 days after a party serves the denial order with written notice of entry. The statute also addresses notice served by the appellant; service rules can affect calculation. Appellate litigation requires separate compliance with record and briefing deadlines.
Read the Restoration Order Carefully
If the court grants relief, check which rulings it vacated and any conditions or new deadlines. Restoration permits the claim to proceed. It does not establish liability or award damages.
5. FAQ
Settlement discussions and changes in representation can occur while a restoration request is pending, but neither automatically removes the default.
Negotiations alone do not extend a filing deadline or vacate an order. Any agreed relief must take the legally required form. Continue tracking deadlines during discussions.
New representation does not itself restart procedural deadlines. The new attorney must address the existing order and the grounds for relief.
6. Review the Dismissal Record before Filing
Provide the dismissal order, notice of entry, service records, scheduling notices, and documents supporting your claim to the attorney reviewing the application. Include prior motion papers and any counterclaim judgment. These records help identify the available grounds, applicable deadlines, and relief needed to reopen the case.
12 Oct, 2026
