Mughal v Rajput, 2013 NY Slip Op 03466 (2d Dept. 2013)
“Although the defendants initially opposed the motion solely through the submission of an attorney’s affirmation, about two weeks later, and prior to the adjourned return date of the motion, they submitted an affidavit from Rajput….”
“Contrary to the plaintiffs’ contention, the Supreme Court did not improvidently exercise its discretion in considering Rajput’s affidavit. Although the affidavit was not timely submitted, the plaintiffs had an opportunity to respond to it, and were not prejudiced thereby (see Lawrence v Celtic Holdings, LLC, 85 AD3d 874, 875; Turturro v City of New York, 77 AD3d 732, 734; Valure v Century 21 Grand, 35 AD3d 591, 592; Hoffman v Kessler, 28 AD3d 718; Franklin v Omni Sagamore Hotel, 5 AD3d 348; Vlassis v Corines, 254 AD2d 273).”
Here is my favorite Civil Kings briefing schedule horror story. Motion for summary judgment adjourned and the forced stipulation of adjournment is submitted for your signature. Arbitrary dates are given to interpose cross-moving and responsive papers, i.e. “the briefing schedule”. Your papers are late, but there is still 1-2 months to go prior to the final return date on the motion. Adversary argues your papers are late but presents sufficient evidence to oppose your motion.
Result: Adversary wins because you violated the sacrosanct briefing schedule. As seen here and in other cases, the question should be prejudice not form over substance. My vote is to do away with the briefing schedule – it is a trap for the unwary. Were the papers served in accordance with CPLR 2214? If yes, fine. If no, then you have a problem.
3 Responses
Parties can stipulate to anyhing. If the stipulation is signed in open court te parties are bound by its terms. No need to show prejudice. Furthermore, if defendant cannot submit an opp 3 or 4 months after receiving the motion papers then that party should lose. Also the Civil Kings briefing scheule makes the callendar predictable and quite small and reasonable. Anyone who has appeared in Kings Civil on those days when there are 300, 400 or 500 motions per day. Perfect example is the Bronx where one can get an unlimited number of adjournments.
I know when the shoe is on the other foot, you beg for adjournments Senor Rookie. And I cannot remember the last time I said no. It also would help if you put your bills in you summons and complaint. This might allow less time spent trying to figure out what you are pleading. Just a thought.
But Jason, we only adjourn cases with your office a dozen times because after the 11th time we give up all hope of actually seeing you in person. That is how much we miss you.