Right Aid Med. Supply Corp. v Travelers Ins. Co. (2019 NY Slip Op 51414(U))

The Rybak Firm, PLLC (Damin J. Toell of counsel), 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 (1) 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 and to timely file its cross motion for summary judgment, granted defendant’s prior motion and denied plaintiff’s cross motion and, (2) upon such vacatur, to deny defendant’s prior motion and grant plaintiff’s cross 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 and any cross motion “must be served on or before” June 12, 2016, that any cross motion served later “will be deemed as untimely,” and “[a]ll papers served beyond the within deadlines shall be deemed null and void.” It is uncontested that plaintiff’s opposition to defendant’s motion and plaintiff’s cross motion for summary judgment were served on July 7, 2016. By order entered August 12, 2016, the Civil Court granted defendant’s motion and denied plaintiff’s cross motion, noting that the cross motion had been served beyond the time set therefor in the stipulation, and dismissed the complaint. Thereafter, plaintiff moved to vacate the August 12, 2016 order and, upon such vacatur, to deny defendant’s motion and grant plaintiff’s cross motion on the ground that it had timely served its opposition to defendant’s motion and its cross motion. Plaintiff appeals from an order of the Civil Court entered September 28, 2017 which denied plaintiff’s motion.

In its motion papers, plaintiff asserted, incorrectly, that it had served its opposition to [*2]defendant’s motion and its cross motion in accordance with the time set forth therefor in the stipulation. However, the unequivocal language of the stipulation provided that service of opposition papers and any cross motion must be on or before June 12, 2016 and that any cross motion served beyond June 12, 2016 would be deemed untimely and “null and void.” Consequently, in order to warrant the relief requested, plaintiff was required to demonstrate both a reasonable excuse for its default and a potentially meritorious opposition to defendant’s motion (see CPLR 5015 [a]; Estrada v Selman, 130 AD3d 562 [2015]). Plaintiff failed to provide any excuse for its default in its motion papers.

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]).