You are here: / / PLAINTIFF’S COUNSEL EXPLAINED THAT THE RETURN DATE FOR DEFENDANT’S...
, ,

PLAINTIFF’S COUNSEL EXPLAINED THAT THE RETURN DATE FOR DEFENDANT’S SUMMARY JUDGMENT MOTION WAS MISCALEDARED AS THE DATE FOR SUBMISSION OF OPPOSITION PAPERS; IT WAS AN ABUSE OF DISCRETION TO DENY PLAINTIFF’S MOTION TO VACATE THE SUMMARY JUDGMENT ORDER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the court abused its discretion in denying plaintiff’s motion to vacate the order granting summary judgment to defendant in this slip and fall case. Plaintiff’s counsel explained that the return date had been mistakenly calendared as the date for the submission of opposition papers:

In order to vacate a default in opposing a motion pursuant to CPLR 5015(a)(1), the moving party is required to demonstrate a reasonable excuse for the default as well as a potentially meritorious opposition to the motion … . Here, the plaintiff’s excuse of law office failure was reasonable … , and she also demonstrated that she had a potentially meritorious opposition to the defendant’s motion … .

Under the circumstances of this case, including that the scheduling error by counsel for the plaintiff was brief, isolated, and unintentional, with no evidence of wilful neglect … , and considering the strong public policy in favor of resolving cases on the merits … , the Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff’s motion which was to vacate the … order … . Valesquez v Landino, 2023 NY Slip Op 01023, Second Dept 2-22-23

Practice Point: Here plaintiff’s counsel offered a reasonable excuse for missing the date for submission of opposition papers. Supreme Court abused its discretion in denying plaintiff’s motion to vacate the summary judgment order.

 

You might also like
Failure to Submit Lease to Show No Contractual Obligation to Remove Ice And Snow Precluded Summary Judgment to Defendant Out-of-Possession Landlord—Evidence First Submitted in Reply Papers Properly Not Considered
SUMMARY JUDGMENT PURSUANT TO THE DOCTRINE OF RES IPSA LOQUITUR WAS NOT WARRANTED BECAUSE EXCLUSIVE CONTROL WAS NOT DEMONSTRATED; SANCTIONS FOR THE LOSS OF THE LIGHT FIXTURE WHICH FELL ON PLAINTIFF WERE NOT WARRANTED BECAUSE THE BENT PIPE TO WHICH THE FIXTURE WAS ATTACHED WAS PRESERVED (SECOND DEPT).
Grant of Visitation to Mother of Deceased Father (Grandmother) Reversed​
BENCH TRIAL VERDICT REVERSED, COMMON CARRIER NOT LIABLE FOR BUS PASSENGER’S SLIP AND FALL ON BLACK ICE AFTER STEPPING OFF THE BUS (SECOND DEPT).
School Not Liable for Three-Year-Old’s Failure to Get Off the Bus After Arrival at the School—Child Had Not Yet Entered the Orbit of the School’s Authority—Although School Voluntarily Undertook the Duty to Determine the Whereabouts of Absent Students, the Parents Were Not Aware of that Policy and Therefore Could Not Have Relied On It
Second Summary Judgment Motion Properly Denied—Not Based on Newly Discovered Evidence
Contractual-Indemnification Cross Claim by Building Owners Against the Elevator Maintenance Company Should Not Have Been Dismissed—Relevant Criteria Explained
Detective’s Testimony About Statement Made by Nontestifying Co-Defendant Violated Defendant’s Right of Confrontation

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

IN THIS CHILD VICTIMS ACT LAWSUIT ALLEGING PLAINTIFF WAS ABUSED BY A SCHOOL... DEFENDANT IN THIS FORECLOSURE ACTION SHOULD HAVE BEEN ALLOWED TO AMEND THE ANSWER...