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The Civil Kings briefing scheduleJune 27, 2016

Brand Med. Supply, Inc. v Praetorian Ins. Co., 2016 NY Slip Op 50961(U)(App. Term 2d Dept. 2016)

“Although the stipulation required that plaintiff’s opposition was to be served on or before March 18, 2012, plaintiff served its opposition papers on March 29, 2012. By order entered May 18, 2012, the Civil Court (Carolyn E. Wade, J.) granted, on default, defendant’s motion for summary judgment, declining to consider plaintiff’s late opposition to the motion.”

“Upon the record presented, we find that the explanation proffered by plaintiff’s attorney was insufficient to establish a reasonable excusable for plaintiff’s failure to timely oppose defendant’s summary judgment motion (see Starakis v Baker, 121 AD3d 669 [2014]; Dokaj v Ruxton Tower Ltd. Partnership, 91 AD3d 812 [2012]). Moreover, plaintiff’s attorney offered no reason for waiting 10 months before moving to vacate the default order

This case is a prime example of why mechanistic adherence to the “briefing schedule” is insane.  Papers were 11 days late, argument was 6 weeks later and the Court declined to consider the papers.  I think that is wrong.  There was no prejudice and another game of “i gotcha” occurred.

That all being said, I can’t help but think that if Plaintiff moved ASAP after it got hit with the briefing schedule loss, the Appellate Term would have reversed.

I just don’t see the prejudice if the papers are served in accordance with the CPLR.

5 Responses

  1. Alan Klaus says:

    I disagree. The court sets a briefing schedule that should be adhered to. Without a justifiable excuse of lateness the papers are late and should be rejected!

    • jtlawadmin says:

      Coming from the man on the west coast who never spent a day on room 809 in Civil Court, Kings County….

  2. Alan Klaus says:

    First of all I Spent many days in Court b4 I moved to paradise! Second I still Have many open cases with this issue being at the forefront right now.

    • jtlawadmin says:

      Excuse me – you filed in Bronx and Queens where courtesies (sometimes too many) were extended. I remember your cases..

  3. Alan Klaus says:

    U r right. I didn’t spend much time in Kings but the issue is the same in all Counties.