The proper mecanism to vacate a motion for summary judgment granted on default is through 5015(a)

Two points of law.

First, late answering papers should be accepted if there is a reasonable basis for their untimeliness.  Absent papers being served a week or less before the return date, it seems unfortunate that attorneys wish to play the “late opp we will not accept game.”  I keep a list of people who do this to me, along with a stack of proposed EBT and SJ motions.

Second, a motion to vacate an order granting an award of summary judgment on default should be addressed through a CPLR 5015(a) motion.  Be aware, however, that there is First Department precedent that suggests that the proper mechanism to address this type of default is through a motion to renew.

Friendly Physician, P.C. v GEICO Ins. Co., 2010 NY Slip Op 51772(U)(App. Term 2d Dept. 2010).

Now the highlights of this case..

“In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. When defendant attempted to file opposing papers almost a month after their stipulated due date, the Civil Court rejected defendant’s papers and, by order dated October 15, 2007 (Robin D. Garson, J.), granted plaintiff’s motion on default. In November 2007, defendant moved to vacate the October 15, 2007 order pursuant to CPLR 5015 (a) (1). By order entered November 19, 2007 (Peter Paul Sweeney, J.), the Civil Court denied defendant’s motion without prejudice, stating that “[d]efendant is granted leave to submit a motion to reargue or renew before Judge Garson, who initially granted the judgment in dispute.” The instant appeal by defendant ensued.”

…

“The affirmations of the attorneys employed by the law firm representing defendant satisfied these criteria.”

“We note that, contrary to the Civil Court’s direction, relief from an order granted upon default should be sought by means of a motion pursuant to CPLR 5015, not by a motion to renew or reargue”