Longevity Med. Supply, Inc. v State Farm Fire & Cas. Co., 2017 NY Slip Op 50118(U)(App, Term 2d. Dept. 2017)
I have never been a fan, since where there is no prejudice, what is accomplished through this nonsense?
(1) Plaintiff cross-moved for summary judgment and submitted papers in opposition to defendant’s motion. In an order entered February 20, 2014, the Civil Court granted defendant’s motion, stating that “[d]efendant’s motion is granted as no timely opposition was served. Plaintiff’s cross motion is not being considered because it was untimely. This action is hereby dismissed.” Thereafter, plaintiff moved, among other things, to vacate the February 20, 2014 order. By order entered November 18, 2014, the Civil Court denied plaintiff’s motion, stating that “[t]he opposition [and] cross motion on the underlying motion were untimely served, [and] the court refused to consider those papers based on the parties’ briefing stipulation.”
(2) It is well settled that a party seeking, pursuant to CPLR 5015 (a) (1), to open its default in [*2]opposing a motion must demonstrate a reasonable excuse for the default and a potentially meritorious opposition to the motion (see Suede v Suede, 124 AD3d 869 [2015]; Shkolnik v Beyderman, 43 Misc 3d 143[A], 2013 NY Slip Op 52033[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; see also D & R Med. Supply, Inc. v American Tr. Ins. Co., 35 Misc 3d 136[A], 2012 NY Slip Op 50785[U], *1-2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).
(3) The affirmation of plaintiff’s attorney provided a detailed and credible showing of law office failure, which constituted an adequate excuse for plaintiff’s default in timely opposing defendant’s motion (see Estrada v Selman, 130 AD3d 562, 562-563 [2015])
The end result here is immaterial.
