D & r Med. Supply, Inc. v American Tr. Ins. Co., 2012 NY Slip Op 50785(U)(App. Term 2d Dept. 2012).
“In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was granted on default inasmuch as the court refused to consider defendant’s opposing papers as well as its cross motion for summary judgment dismissing the complaint because, while the cross motion and opposing papers had been served 21 days before the return date of the motion, they were untimely pursuant to a briefing schedule set by the Civil Court. Defendant appeals from an order entered July 28, 2010 which denied its motion to vacate the default order entered December 8, 2009 and, upon vacatur, for a new determination of plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment.”
“In the instant case, defendant proffered a reasonable excuse for its failure to timely submit its opposing papers and cross motion, and also set forth a meritorious defense to the action. Accordingly, the judgment is reversed, the order entered July 28, 2010 is vacated, defendant’s motion to vacate the order entered December 8, 2009, which had granted, as unopposed, plaintiff’s motion for summary judgment and had refused to consider, on the ground of untimeliness, defendant’s cross motion for summary judgment dismissing the complaint, and, upon such vacatur, for a new determination of plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint is granted, and plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint are remitted to the Civil Court for a new determination.”
It is a logical result when you think about it. As long as your follow the CPLR and there is no prejudice, where is the harm?
