I disagree with the majority that Supreme Court properly granted plaintiffs motion to renew appellants’ prior motion for summary judgment dismissing the complaint.
On September 18, 1998, plaintiff was involved in an altercation with defendant-appellant Casanova, the superintendent of a building owned by defendant-appellant Jake Realty LLC, and managed by defendant-appellant Pine Management. The altercation occurred in the building of which Casanova was the superintendent; plaintiff was a tenant in the building. As a result of the altercation, plaintiff was placed under arrest by New York City police officers and was later convicted, following a jury trial, in New York County Criminal Court of harassment in the second degree and resisting arrest. Following his arrest but prior to his conviction, plaintiff commenced this action in September 1999 against appellants and the City of New York and the police officers who arrested him to recover damages for false arrest, malicious prosecution, assault and battery, and violations of 42 USC § 1983.
Appellants moved for summary judgment dismissing the complaint against them and the City of New York and the police officers cross-moved for the same relief. Plaintiff failed to submit opposition to these motions and also failed to appear at oral argument. By an order dated October 28, 2003, Supreme Court granted the motions on the ground that plaintiff’s conviction established that the police had probable cause to arrest plaintiff and that a finding that probable cause existed for the arrest was fatal to plaintiff’s claims. Supreme Court noted that plaintiff did not submit any evidence in opposition to the motions, but the court did not grant the motions based on plaintiffs failure to oppose them or appear for oral argument.
By an order dated April 12, 2004, the Appellate Term, First Department, reversed plaintiffs judgment of conviction, finding that plaintiffs conviction for harassment in the second degree was against the weight of the evidence, and that his conviction for resisting arrest had to be dismissed because the police lacked probable cause to arrest him (People v Ramos, 3 Misc 3d 127[A], 2004 NY Slip Op 50324[U] [2004]).
*57More than three years later, by motion papers dated May 18, 2007, plaintiff moved to renew the motions for summary judgment. Plaintiff argued that Supreme Court’s order granting summary judgment dismissing the complaint was predicated on his conviction and that the conviction was reversed after the order had been issued. By an order dated August 13, 2007, Supreme Court granted plaintiffs motion to renew and, upon renewal, denied appellants’ motion for summary judgment. This appeal ensued.
Despite plaintiffs failure to oppose the motions for summary judgment or appear at oral argument on those motions, plaintiff correctly sought relief by moving to renew those motions. “A summary judgment motion should not be granted merely because the party against whom judgment is sought failed to submit papers in opposition to the motion” (Liberty Taxi Mgt., Inc. v Gincherman, 32 AD3d 276, 277 n [2006]). Rather, where a party fails to submit opposition to a motion for summary judgment, the court is required to “assess whether the moving party has fulfilled its burden of demonstrating that there is no genuine issue of material fact and its entitlement to judgment as a matter of law” (id., quoting Vermont Teddy Bear Co., Inc. v 1-800 Beargram Co., 373 F3d 241, 244 [2d Cir 2004]). In other words, a summary judgment motion should not be granted based solely on a party’s failure to submit opposition, i.e., on “default” (see Vermont Teddy Bear Co., 373 F3d at 245-247). Of course, however, a court may dismiss an action based upon a party’s failure to appear before the court for a scheduled appearance (22 NYCRR 202.27), but here the court did not do that. Instead, the court reviewed the motions for summary judgment to ascertain whether the movants met their respective burdens, and, based on its assessment of those motions, granted the movants summary judgment. Because the order deciding the motions was not a default order or judgment, plaintiff could not seek relief under CPLR 5015 (a) (1). Rather, plaintiff correctly sought relief under CPLR 2221.
Leave to renew is not freely given to a party who did not exercise due diligence in opposing the initial motion (see Rubinstein v Goldman, 225 AD2d 328 [1996], Iv denied 88 NY2d 815 [1996]; see also Chelsea Piers Mgt. v Forest Elec. Corp., 281 AD2d 252 [2001]), and plaintiff did not exercise due diligence in opposing the motions for summary judgment. Indeed, plaintiff offered no explanation at all for his failure to oppose the motions. He did not claim that he was not given notice of the mo*58tions; he did not offer any explanation or excuse for his failure to oppose the motions; and he offered no excuse for his failure to alert Supreme Court that his appeal from his criminal conviction was sub judice (see Beyl v Franchini, 37 AD3d 505, 506 [2007] [renewal properly denied where plaintiff failed to offer an explanation for his failure to seek an adjournment of defendants’ prior motion to permit plaintiffs expert to perform an examination of plaintiff]; cf. Luna v Port Auth. of N.Y. & N.J., 21 AD3d 324 [2005] [plaintiff informed motion court of the circumstances surrounding plaintiffs inability to present certain evidence in opposition to defendants’ motion before the motion court ruled on defendants’ motion]). Rather, in his affirmation in support of plaintiff’s motion to renew, plaintiffs counsel merely stated that he was “puzzled by the fact that [the motions] were unopposed by [plaintiff’s] former counsel at the time” those motions were made. Counsel’s puzzlement is not an excuse. To the contrary, it is insufficient as a matter of law to explain plaintiff’s failure to oppose the motions (see Okun v Tanners, 11 NY3d 762 [2008], revg 47 AD3d 475 [2008]).
Under these circumstances, Supreme Court should have denied the motion to renew as a matter of law. Had plaintiff exercised due diligence and notified the court hearing the motions for summary judgment that his appeal from his criminal conviction was pending at the time the motions for summary judgment were made, the court could have adjourned the motions or held them in abeyance pending the resolution of the criminal appeal and avoided deciding the motions on the basis of the criminal conviction (see Beyl, supra). Plaintiffs appeal to the Appellate Term had already been heard and was sub judice at the time the motions for summary judgment were made.
Moreover, plaintiffs failings go beyond failing to exercise any diligence in opposing the motions and failing to offer any excuse for his failure to do so. Plaintiff failed to seek renewal for more than three years after the Appellate Term reversed his conviction, and even then did so only at the urging of Supreme Court (or, as the majority charitably puts it, after “receiving guidance” from Supreme Court). Although a motion to renew is not subject to any particular limitation of time in which it must be made, I think it evident that plaintiffs protracted and unexplained delay is utterly inexcusable (see e.g. Levy v New York City Health & Hosps. Corp., 40 AD3d 359 [2007], Iv dismissed 9 NY3d 1001 [2007] [renewal denied where plaintiff, in seeking renewal of prior motion, failed to offer reasonable justification *59for her five-year delay in seeking renewal]; Cole-Hatchard v Grand Union, 270 AD2d 447 [2000] [renewal improperly granted where party seeking renewal failed to offer excuse for seven-month delay in seeking renewal]; Dankner v Szurzan & Dorf, 226 AD2d 669 [1996] [renewal properly denied where party seeking renewal failed to offer an explanation for her 17-month delay in seeking renewal]; Ramsco, Inc. v Riozzi, 210 AD2d 592 [1994] [renewal properly denied where party seeking renewal failed to offer excuse for its seven-month delay in seeking renewal]; Elgem, Inc. v National Gypsum, 192 AD2d 636 [1993] [renewal properly denied where party seeking renewal failed to offer explanation for his 13-month delay in seeking renewal]). By nonetheless granting renewal and denying appellants’ motion for summary judgment, Supreme Court failed to heed legal standards and unjustifiably vitiated appellants’ legitimate finality interests and expectations. In affirming, the majority does the same.
Tom, J.E, and DeGrasse, J., concur with Acosta, J.; Nardelli and McGuire, JJ., dissent in a separate opinion by McGuire, J.
Order, Supreme Court, New York County, entered August 16, 2007, affirmed, without costs.