The First Department considered an interesting procedural issue in Carrillo v New York City Tr. Auth., 2007 NY Slip Op 03060. At issue was whether the trial court properly denied the plaintiff's motion to vacate the trial court's order, which granted the defendant's motion for summary judgment and dismissed the complaint in its entirety.
In this case, the plaintiff alleged that she sustained personal injury while traveling on a public bus. After disclosure had been completed and a note of issue had been filed by the plaintiff, the defendant sought and obtained leave to file a late motion for summary judgment. The plaintiff submitted responsive papers, but when the plaintiff's counsel failed to appear at motion argument, the trial court granted the motion for summary judgment based upon the plaintiff's default for failing to appear at motion argument.
The plaintiff's counsel moved to vacate the Order and submitted an attorney affirmation alleging that he'd been told by the court clerk that appearances on the return date of the motion were not required. The defendant opposed the motion on the grounds that the motion was made only 2 days before the one-year period in which to make the motion expired and because a reasonable excuse for failure to appear had not been made. The trial court agreed with the defendant on both issues.
Fortunately for the plaintiff, the First Department concluded otherwise:
Supreme Court found plaintiff did not show a reasonable cause for the delay in making the motion to vacate and denied the motion as "not being timely made." This was error. Plaintiff had one year from service of notice of entry of the order granting summary judgment on default to make the motion to vacate (CPLR 5015 [a]). Given that plaintiff was served with notice of entry of the order on October 12, 2004 and the motion to vacate was filed on October 10, 2005, the motion was timely. Plaintiff's attorney presented a reasonable excuse for not appearing on the return date of the motion in affirming that he was informed by a court clerk that his appearance was not required. Such a scenario does not, by itself, amount to a pattern of neglect or willfulness warranting a default...
I think that the First Department's decision was correct and was somewhat surprised by the trial court's determinations in this case. I'd hazard to guess that the trial court was more than just a bit biased against either plaintiffs in general, or the plaintiff's particular counsel in this case. This supposition is further buttressed by the trial court's decision to allow the defense leave to file a late motion for summary judgment and its subsequent and extremely harsh rulings against the plaintiff.
But, I could be completely off base on this one. It wouldn't be the first time.