Imputing Counsel’s Repeated Neglect to the Client: Second Department Narrows “Interest‑of‑Justice” Vacatur and Enforces the One‑Year CPLR 5015(a)(1) Deadline

Introduction

In Zlobec v. Bank of N.Y. Mellon (2025 NY Slip Op 04600), the Appellate Division, Second Department, reversed a trial court’s order that had vacated a default judgment and extended time to reply to a counterclaim. The case arises from a quiet title action under RPAPL article 15 brought by Robert Zlobec, challenging a 2006 mortgage executed by his wife, Kerri McGill (also known as Kerri Zlobec), after title had already been transferred into his name. The defendant, Bank of New York Mellon (BNYM), counterclaimed to impose an equitable mortgage to the extent the 2006 loan proceeds repaid prior valid liens on the property.

After years of discovery breaches, multiple changes of counsel, and unopposed motion practice, the Supreme Court struck Zlobec’s complaint under CPLR 3126 and—following reargument—granted BNYM leave for a default judgment on its counterclaim. In April 2022, the court entered judgment dismissing the complaint and imposing an equitable mortgage. Over a year later, Zlobec moved to vacate the judgment and extend time to reply. The trial court granted that relief, but the Second Department reversed, reinstating the judgment and clarifying the limits on vacatur under CPLR 5015 and the court’s inherent “interest‑of‑justice” authority.

Summary of the Judgment

The Appellate Division reversed the Supreme Court’s September 21, 2023 order “on the law,” with costs, and denied plaintiff’s motion to vacate the April 2022 judgment and to extend time to reply.
CPLR 5015(a)(1) motion was untimely: the plaintiff moved more than one year after service of the judgment with notice of entry; the statutory one‑year deadline applies and was not excused.
Even under the court’s inherent “interest‑of‑justice” power to vacate after the one‑year period, relief requires a showing of fraud, mistake, inadvertence, surprise, or excusable neglect, which was not made here.
“Law office failure” must be supported by a detailed, credible explanation; plaintiff’s conclusory assertions about successive counsel’s neglect were insufficient. A pattern of neglect by counsel was imputed to the client.
Because no reasonable excuse for the default was shown, the court did not reach the issues of a potentially meritorious defense or opposition.
For the same reasons, the plaintiff was not entitled to an extension of time to reply to the counterclaim under CPLR 3012(d).
Result: The April 2022 judgment remains in place—plaintiff’s complaint is dismissed and BNYM holds an equitable mortgage to which plaintiff’s interest is subordinate.

Factual and Procedural Background

Title chain: By July 2005, title was recorded in the plaintiff’s name. Nonetheless, McGill obtained loans in August 2005 and January 2006, secured by mortgages on the same property.
Assignment: Countrywide’s 2006 mortgage was assigned to BNYM in 2011. McGill died in 2010.
Litigation: In 2017, the plaintiff sued to quiet title and discharge the 2006 mortgage as void. BNYM counterclaimed for an equitable mortgage equal to the funds used to satisfy valid prior liens.
Discovery: A so‑ordered stipulation in November 2020 required production of tax authorizations, ID, and credit report materials; plaintiff did not comply. Multiple counsel withdrew or were replaced.
Sanctions/default: In October 2021, BNYM moved to strike and for default on its counterclaim; plaintiff filed no opposition. On December 8, 2021, the court struck the complaint under CPLR 3126. On February 24, 2022, upon reargument, the court granted BNYM leave to enter a default on its counterclaim. In April 2022, judgment was entered, imposing an equitable mortgage and dismissing the complaint.
Vacatur motion: In July 2023, with new counsel, plaintiff moved under CPLR 5015(a)(3) and effectively (a)(1) to vacate; he also sought an extension under CPLR 3012(d). The trial court granted the motion; the Appellate Division reversed.

Detailed Analysis

Precedents Cited and Their Influence

Caridi v Tanico, 188 AD3d 636: Establishes that vacatur under CPLR 5015(a)(3) based on intrinsic fraud requires both a reasonable excuse and a potentially meritorious defense. The Second Department used this to reject plaintiff’s attempt to vacate without a substantiated excuse.
Deutsche Bank Natl. Trust Co. v Karlis, 138 AD3d 915: Reinforces the same dual showing for intrinsic fraud under CPLR 5015(a)(3). The court treated plaintiff’s “fraud” theory as intrinsic and therefore subject to the reasonable‑excuse requirement.
HSBC Bank USA, N.A. v Joseph, 209 AD3d 633: This case is central. It holds that:
- “Law office failure” must be supported by detailed, credible facts; conclusory claims won’t do.
- A pattern of neglect by counsel can be imputed to the client, defeating a claim of excusable neglect.
- Absent a reasonable excuse, courts need not reach whether there is a potentially meritorious defense.
The panel found a comparable “pattern of default and neglect” here, and imputed it to the plaintiff.
Deutsche Bank Natl. Trust Co. v Fernandez, 208 AD3d 1151: Confirms the one‑year limitations period for CPLR 5015(a)(1) runs from service with notice of entry. Plaintiff’s motion exceeded that period and was untimely.
HSBC Bank USA, N.A. v Miller, 121 AD3d 1044: While courts retain inherent power to vacate in the interest of justice after one year, the movant must still justify the delay with a reasonable excuse. Neglect by counsel alone did not suffice there, nor here.
Wilmington Sav. Fund Socy., FSB v Marte, 219 AD3d 929; Wilmington Trust, N.A. v Newman, 222 AD3d 917; HSBC Bank USA, N.A. v Gias, 215 AD3d 810; Campbell v TPK Heating, Ltd., 181 AD3d 642; U.S. Bank N.A. v Mallouk, 229 AD3d 832; Wells Fargo Bank, N.A. v Eliacin, 206 AD3d 950; Seaman v New York Univ., 175 AD3d 1578; New York Vein Ctr., LLC v Dovlaryan, 162 AD3d 1056; Vizelter v Strogov, 170 AD3d 917: These decisions articulate the strict standards for “law office failure,” emphasizing the need for specific, corroborated explanations and recognizing that a persistent pattern of neglect is imputed to the client. Together they frame the Second Department’s intolerance for generalized excuses spanning long periods of inactivity.
U.S. Bank N.A. v Losner, 145 AD3d 935; Matter of Adelson, 84 AD3d 952; Crystal Springs Capital, Inc. v Big Thicket Coin, LLC, 220 AD3d 745; Slate Advance v Saygan Global Steel, Ltd., 206 AD3d 782: These cases explain the scope and limits of a court’s inherent “interest‑of‑justice” power to vacate a judgment even beyond CPLR 5015(a)’s strictures. The power is not plenary and is typically available only for fraud, mistake, inadvertence, surprise, or excusable neglect. The panel applied these limits to deny relief here.
Bank of N.Y. Mellon Trust Co. N.A. v Hsu, 204 AD3d 874; Wells Fargo Bank, N.A. v Hyun Jung Kim, 189 AD3d 1673; JPMorgan Chase Bank, N.A. v Dev, 176 AD3d 691: These authorities stress that to obtain interest‑of‑justice vacatur, the movant must show a recognized ground like fraud or excusable neglect, which was not demonstrated by plaintiff’s sparse, conclusory affidavit.
Bank of N.Y. Mellon v Adago, 155 AD3d 594: An extension of time to serve or to plead under CPLR 3012(d) likewise turns on a reasonable excuse and a meritorious claim; absent a reasonable excuse, relief is denied. The panel followed this logic to reject plaintiff’s request for extra time to reply to the counterclaim.

Legal Reasoning Applied

Timeliness under CPLR 5015(a)(1): The one‑year clock began when the April 2022 judgment was served with notice of entry (April 18, 2022). Plaintiff waited until July 2023—beyond one year—rendering his (a)(1) motion untimely. Courts may look past the deadline only under their inherent authority if the movant shows an adequate basis in the interest of justice, which was not done here.
No reasonable excuse for default: Plaintiff attributed the defaults to “law office failure” by successive counsel (including failure to advise him about discovery obligations, pending motions, and resulting orders). The affidavit, however, was conclusory and uncorroborated. The record showed a pattern of noncompliance, non‑communication, and inaction extending more than two years. Under governing precedents, such a pattern is imputed to the client and defeats any claim of excusable neglect.
Intrinsic fraud under CPLR 5015(a)(3): Where vacatur is sought on the basis of intrinsic fraud, the movant must show both a reasonable excuse and a potentially meritorious defense. Even assuming plaintiff framed his motion under (a)(3), he still failed at the threshold—no reasonable excuse—so the court did not reach merits.
Inherent “interest‑of‑justice” authority: Although broader than the statute, it is not a free‑floating equity power. It remains anchored to recognized grounds like fraud, mistake, inadvertence, surprise, or excusable neglect. Plaintiff provided no evidence that the orders and judgment were the product of any such ground. Thus, interest‑of‑justice vacatur was unavailable.
No need to reach merits: Without a reasonable excuse, the court declined to consider whether plaintiff had meritorious opposition to BNYM’s motions or a meritorious defense to the counterclaim.
CPLR 3012(d) extension: The same deficiency—no reasonable excuse—foreclosed an extension of time to reply to the counterclaim.

Impact and Significance

Zlobec crystallizes several procedural guardrails that will govern default vacatur practice in New York’s Second Department:

One‑year means one‑year: The court strictly enforces CPLR 5015(a)(1)’s one‑year deadline from service with notice of entry. Litigants cannot sidestep this by re‑labeling their motion under (a)(3) when the asserted “fraud” is intrinsic, or by invoking amorphous “interest‑of‑justice” principles.
Interest‑of‑justice is not a backstop for neglect: Even inherent power to vacate is constrained; it requires proof of recognized grounds. Generalized allegations about counsel’s mistakes, without specifics, corroboration, or diligence by the client, will not suffice.
Law office failure must be detailed and credible: Affidavits must set out who did what, when, why it happened, and attach supporting materials (emails, calendars, NYSCEF notices, medical emergencies, etc.). Mere changes of counsel and silence are fatal, particularly when the record shows multiple missed deadlines and unopposed motions.
Client’s duty to monitor litigation: Extended periods with no inquiry by the client (here, more than two years) undermine any claim of excusable neglect. The decision underscores that clients bear ultimate responsibility for their case’s status.
Discovery sanctions have real bite: Orders striking pleadings under CPLR 3126 for willful and contumacious noncompliance are difficult to undo. Once a default judgment follows, vacatur requires a rigorous showing on both excuse and merit.
Mortgage/Title litigation: While the panel did not reach substantive mortgage validity or equitable subrogation issues, the judgment’s reinstatement leaves in place an equitable mortgage in BNYM’s favor. Practically, this confirms that equitable remedies can endure where defaults preclude merits adjudication.

Complex Concepts Simplified

CPLR 5015(a)(1) – Excusable Default: A path to undo a default judgment within one year after you are served with it (with notice of entry). You must prove both (i) a reasonable excuse for missing the deadline or defaulting, and (ii) a potentially winning defense or opposition.
CPLR 5015(a)(3) – Fraud, Misrepresentation, or Misconduct: Lets you vacate a judgment if the other side procured it by fraud. When the alleged fraud is “intrinsic” (e.g., perjury or false evidence within the case), you still must show a reasonable excuse and a potentially meritorious defense. “Extrinsic” fraud (e.g., keeping you from appearing) can be different, but that was not shown here.
Intrinsic vs. Extrinsic Fraud: Intrinsic fraud concerns issues litigated within the action (e.g., false testimony); extrinsic fraud prevents participation (e.g., concealing the lawsuit). Intrinsic fraud is harder to use for vacatur and still needs a proper excuse and merit.
“Law Office Failure” (CPLR 2005): Courts may forgive certain mistakes by lawyers, but only if the explanation is detailed, credible, and supported. A vague claim that “my lawyer messed up” is insufficient.
Court’s Inherent “Interest‑of‑Justice” Power: Courts can, in narrow circumstances, vacate judgments even outside the statute. But this is not open‑ended equity; you must still show something akin to fraud, mistake, inadvertence, surprise, or excusable neglect.
CPLR 3126 – Discovery Sanctions: If a party willfully ignores discovery obligations or court orders, the court can impose sanctions up to striking pleadings—effectively ending their case.
CPLR 3012(d) – Extension of Time to Plead: Courts can extend time to answer or reply “upon such terms as may be just,” but the movant usually must show a reasonable excuse and a meritorious claim or defense.
RPAPL Article 15 – Quiet Title: A lawsuit to confirm ownership or remove clouds from title (like a disputed mortgage).
Equitable Mortgage/Subrogation: Even if a formal mortgage is invalid (e.g., executed by someone without title), a court can impose an “equitable mortgage” to the extent the loan proceeds were used to pay off valid prior liens—preventing unjust enrichment of the current owner.
Notice of Entry: Formal service of an order or judgment with notice of entry starts the clock for appeal and post‑judgment relief deadlines, including the one‑year period under CPLR 5015(a)(1).
NYSCEF Service: E‑filing through NYSCEF with proper service constitutes notice; parties must monitor the docket to avoid missing critical deadlines.

Practice Pointers

Docket discipline matters: Set up calendaring and NYSCEF alerts for every counsel change; ensure the client receives direct updates on key filings and orders.
If relying on law office failure, submit detailed affidavits from prior counsel, attach emails, calendar entries, and describe the specific breakdowns and why they were unavoidable.
Move quickly: Treat the one‑year CPLR 5015(a)(1) deadline as hard, and do not assume “interest‑of‑justice” will rescue an untimely motion absent compelling, documented grounds.
Don’t ignore sanctions risk: Promptly comply with so‑ordered discovery stipulations. Repeated noncompliance invites CPLR 3126 relief that may be irreversible.
For equitable mortgage exposure: If your client benefited from payoffs of prior liens, be prepared to confront equitable subrogation or equitable mortgage theories on the merits—if you can keep the case from defaulting.

Conclusion

Zlobec v. Bank of N.Y. Mellon is a robust reaffirmation of procedural rigor in New York practice. It clarifies that:

The one‑year limit under CPLR 5015(a)(1) is enforced, and cannot be evaded by recasting a motion as one under (a)(3) when the alleged fraud is intrinsic.
“Interest‑of‑justice” vacatur is tightly cabined; it demands concrete proof of fraud, mistake, inadvertence, surprise, or excusable neglect—not generalized complaints about counsel.
A pattern of attorney neglect is imputed to the client. Without a detailed, credible explanation, law office failure will not excuse a default.
Where no reasonable excuse exists, courts need not reach merits, and extensions to plead under CPLR 3012(d) will be denied.

The decision’s practical effect is to reinstate the default judgment imposing an equitable mortgage, but its broader significance lies in its procedural message: diligence by both counsel and client is indispensable, and the Second Department will not deploy equitable vacatur powers to cure a history of neglect. This ruling will guide future litigants and courts in navigating default relief, discovery sanctions, and the tight boundaries of post‑judgment vacatur in New York.