Right Aid Med. Supply Corp. v. Travelers Ins. Co.

Right Aid Medical Supply Corp., as Assignee of Persaud Bibi, Appellant, against Travelers Insurance Company, Respondent. The Rybak Firm, PLLC (Damin J. Toell of Cousnel), for appellant. Law Offices of Aloy O. Ibuzor (Janice A. Robinson of counsel), for respondent. Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered September 28, 2017. The order denied plaintiff's motion to vacate an order of that court entered August 12, 2016 which, upon plaintiff's failure to timely submit opposition to defendant's prior motion for summary judgment dismissing the complaint, granted defendant's prior motion. ORDERED that the order entered September 28, 2017 is affirmed, with $25 costs. In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment. A stipulation signed by the parties on November 9, 2015 provided that opposition to defendant's motion "must be served on or before" June 12, 2016, and "[a]ll papers served beyond the within deadline[] shall be deemed null and void." It is uncontested that plaintiff's opposition to defendant's motion was served on July 13, 2016. By order entered August 12, 2016, the Civil Court granted defendant's motion, noting that it was not considering plaintiff's late opposition as it had been served beyond the time set therefor in the stipulation, and dismissed the complaint. Thereafter, plaintiff moved, pursuant to CPLR 5015 (a) (1), to vacate the August 12, 2016 order. Plaintiff appeals from an order of the Civil Court entered September 28, 2017 denying plaintiff's motion. Where a plaintiff moves, pursuant to CPLR 5015 (a) (1), to vacate an order entered upon the plaintiff's failure to oppose a motion, "the plaintiff is required to demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion" (Estrada v Selman, 130 AD3d 562, 562—563 [2015]; see also Longevity Med. Supply, Inc. v State Farm Fire & Cas. Co., 54 Misc 3d 136[A], 2017 NY Slip Op 50118[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; D & R Med. Supply, Inc. v American Tr. Ins. Co., 35 Misc 3d [*2]136[A], 2012 NY Slip Op 50785[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In support of plaintiff's motion to vacate, plaintiff's attorney argued that due to law office failure, the "draft [of the opposition papers] was not . . . served on Defendant until one day after it was due to Defendant" (emphasis in the original). The record, however, indicates that plaintiff mailed its opposition papers to defendant on July 13, 2016, which was over a month past the stipulated due date of June 12, 2016. Under the circumstances, we find that plaintiff failed to demonstrate a reasonable excuse for its default and, therefore, we need not consider whether plaintiff offered a potentially meritorious opposition to defendant's motion (see Wells Fargo Bank, N.A. v Syed, 160 AD3d 914, 915 [2018]). We note that, for the first time on appeal, plaintiff states that its counsel "misread the stipulation as providing a due date of July 12, 2016." However, we do not consider arguments or factual assertions raised for the first time on appeal (see Chimarios v Duhl, 152 AD2d 508 [1989]). Accordingly, the order entered September 28, 2017 is affirmed. PESCE, P.J., WESTON and ALIOTTA, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: August 23, 2019