Key Takeaway
Court case analyzing default judgment after late opposition papers, examining Civil Kings briefing schedule adherence and prejudice standards in NY courts.
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 ; Dokaj v Ruxton Tower Ltd. Partnership, 91 AD3d 812 ). 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.
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