The famous briefing schedule

Longevity Medical obtained relief from a missed briefing deadline, but not for its entire case. The court accepted the law-office explanation and then tested the opposition claim by claim. Two dismissals stood; one claim returned for further proceedings. That partial result is the point of the decision.

Historical note: Longevity (2017) reopened only one claim, not the whole action. The default-judgment hub separates an excuse for late papers from proof of potentially meritorious opposition.

Last reviewed: September 2026.

The briefing stipulation and the two orders

Longevity Medical Supply, Inc. v State Farm Fire & Casualty Co., 2017 NY Slip Op 50118(U), was decided January 20, 2017 by the Appellate Term, Second Department. The action sought assigned first-party no-fault benefits.

The parties entered a motion-schedule stipulation. State Farm then moved for summary judgment, asserting that the assignor had failed to appear at scheduled examinations under oath. Longevity submitted opposition and a cross motion for summary judgment, but the papers were late under the agreed schedule.

In February 2014, the Civil Court granted State Farm’s motion as unopposed and refused to consider the provider’s cross motion as untimely. Longevity moved to vacate. In November 2014, the court denied that application, again relying on the briefing stipulation.

The appeal was from the November denial of vacatur. It was not a direct appeal from both orders. Identifying the order under review explains why the provider had to establish an excuse and potentially meritorious opposition, rather than simply argue that its underlying reimbursement claims should win.

Jason’s original February 2017 comment

I have never been a fan, since where there is no prejudice, what is accomplished through this nonsense?

Jason was criticizing the treatment of briefing defaults. The appellate decision did not abolish motion schedules or decide that lack of prejudice alone guarantees consideration of late papers.

The excuse succeeded

Under CPLR 5015(a)(1), a party seeking to reopen its default in opposing a motion must demonstrate a reasonable excuse and potentially meritorious opposition. Here, the provider’s attorney supplied a detailed, credible explanation of law-office failure.

The court accepted that explanation. Its published opinion does not recite the underlying office mistake in detail. It therefore supports describing the showing as detailed and credible, but not inventing a diary-system malfunction, staff illness or particular calendar error.

CPLR 2005 permits a court considering specified default-relief applications to excuse delay or default resulting from law-office failure. It preserves discretion; it does not require acceptance of every assertion carrying that label. The MAPFRE v Callahan note illustrates an inadequate explanation for a hearing absence.

Acceptance of the excuse in Longevity opened the next inquiry. It did not establish the merits of all three bills. The court examined what the provider’s evidence actually answered in State Farm’s motion.

Mailing proof helped, but did not answer every defense

The medical billing supervisor said she had personally and timely mailed all three claims to State Farm. The court found that sufficient to create a presumption of timely mailing and receipt.

That showing addressed receipt of the claims. It did not, by itself, rebut a separate defense based on failure to attend EUOs. A bill can be received and still be denied on another ground. The distinction between receipt and entitlement to payment explains the split result.

State Farm showed timely denials of two claims based on the assignor’s EUO nonappearances. The supervisor’s additional statement that those bills remained unpaid did not answer that proof. For those two claims, Longevity had not demonstrated potentially meritorious opposition.

The decision thus left those dismissals in place despite the accepted excuse and mailing evidence. Describing the case as a wholesale reversal would erase the two branches on which the provider obtained no relief.

The third claim presented a different issue

For the claim involving services rendered on August 13, 2012, State Farm said it had never received the bill. The supervisor’s personal-mailing account directly answered that position by giving rise to a presumption of receipt.

For that claim, the provider demonstrated potentially meritorious opposition. The appellate court vacated the relevant part of the earlier order and denied that branch of State Farm’s summary-judgment motion.

It also vacated the refusal to consider the corresponding branch of Longevity’s cross motion. The matter was sent back for the Civil Court to decide that branch on its merits. The appellate court did not grant the provider summary judgment or direct payment of that bill.

There were therefore two distinct gains on the surviving claim: State Farm’s dismissal was undone, and the provider regained consideration of its own motion. Neither should be reported as an appellate award of reimbursement.

The remand was confined to the surviving claim’s cross-motion branch. The Civil Court still had to determine whether the provider’s own papers established entitlement to judgment on that claim. Defeating the insurer’s nonreceipt position was the reason to reopen consideration; it was not a substitute for deciding the affirmative motion. A later description of the case should therefore preserve the distinction between denial of an adversary’s motion and a grant of one’s own.

The D & R comparison

Longevity cited D & R Medical Supply v American Transit Insurance Co., 2012 NY Slip Op 50785(U), another dispute over late papers under a motion-schedule stipulation.

In D & R, the provider’s papers had been served 21 days before the return date but did not comply with the parties’ schedule. The provider properly sought to vacate the resulting default and offered both a sufficient law-office explanation and potentially meritorious opposition. The Appellate Term directed a new determination of the motions on their merits.

That decision does not mean serving papers a particular number of days before a return date always defeats a contrary stipulation. Its relief depended on the showing made on vacatur. Nor was the direction to determine the motions a ruling granting the underlying provider claim.

Longevity applied that same distinction but reached a narrower result because the merits showing differed among the bills. The cases belong together for their procedural reasoning, not as promises that every missed briefing date can be cured.

Read the disposition before treating the case as a win

A useful review identifies the missed obligation, the explanation, the opposing party’s actual grounds, and the evidence responding to each ground. In Longevity, one affidavit could establish mailing for three claims without overcoming the defenses to all three.

That is also why Urban Radiology is a close companion. Its lost-file excuse was accepted, but only one claim had a sufficiently supported defense. In both cases, the court separated relief from a procedural default from success on every part of the underlying dispute.

By contrast, Shy v Shavin and New Age Medical failed at the excuse stage. Those decisions did not need to resolve potential merit. The distinction helps a reader find the relevant branch of the default cases without flattening their outcomes.

Jason ended his original post with:

The end result here is immaterial.

That sentence expressed his objection to the briefing practice. For a reader applying the case, the actual partial disposition remains essential: two dismissals stood, one defense motion was denied, and one provider cross motion returned for a merits determination.

Connect to the Encyclopedia

Start with the default-judgment and vacatur hub. Follow the closest procedural comparisons:

• Urban Radiology: an accepted excuse with only partial relief.
• MAPFRE v Callahan: law-office failure did not excuse the hearing absence.
• Shy: the court stopped after finding no reasonable excuse.
• New Age Medical: an unexplained delay after rejection of an answer.
• Surgicore: default judgment rather than contested summary judgment.

For review of a particular default or litigation deadline, contact the Law Office of Jason Tenenbaum. Have the summons, service proof, relevant orders, notice of entry and motion papers available. This case note does not determine the outcome of a new application.