Vallorani v Kane

[*1] Vallorani v Kane 2008 NY Slip Op 51559(U) [20 Misc 3d 138(A)] Decided on July 10, 2008 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 10, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2007-1024 Q C.

Italia Vallorani, Respondent,

against

James J. Kane and RUTH B. KANE, Appellants.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered April 2, 2007. The order consolidated a motion by defendants for summary judgment with a motion by plaintiff seeking vacatur of her default in opposing defendants' motion and leave to submit late opposition to defendants' motion with defendants being afforded an opportunity to reply and, upon such consolidation, granted plaintiff's motion to vacate the default, and denied defendants' motion for summary judgment.

Order modified by vacating the provision denying defendants' motion for summary judgment, and matter remanded to the court below for a determination de
novo of defendants' motion for summary judgment; defendants are afforded 30 days from the date of the order entered hereon to serve and file reply papers in further support of their motion. As so modified, order affirmed without costs.

In this action to recover damages for injuries plaintiff sustained in an automobile accident, defendants moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102. Prior to the entry of an order determining defendants' motion, plaintiff moved to vacate her default and for leave to file late opposition papers thereto. Specifically, the order to show cause requested that the court below "Re-calendar[ ] the defendants' summary judgment motion so that plaintiff may submit opposition papers and the defendants may submit reply papers to said opposition [*2]papers." The court consolidated defendants' summary judgment motion with plaintiff's motion and, upon consolidation, granted plaintiff's motion to vacate her default, and denied defendants' motion for summary judgment. The instant appeal by defendants ensued.

The court below acted well within its discretion when, upon finding good cause, it allowed plaintiff to submit late opposition papers (see CPLR 2004; 2214 [c]). As noted above, plaintiff did not request immediate consideration of defendants' motion for summary judgment. Rather, plaintiff's motion envisioned that if the court granted same, defendants' motion for summary judgment would be recalendared and defendants would have an opportunity to submit reply papers in further support of their motion for summary judgment. In view of the relief requested in plaintiff's motion, the court should not have determined defendants' motion for summary judgment without first affording defendants an opportunity to submit a reply to the proposed opposition papers annexed to plaintiff's motion papers. By the court's failure to provide defendants an opportunity to reply to plaintiff's opposition, defendants were unduly prejudiced (see Mosheyeva v DiStefano, 288 AD2d 448, 449 [2001]; Vlassis v Corines, 254 AD2d 273, 274 [1998]; I & B Surgical Supply v New York Cent. Mut. Fire Ins. Co., 16 Misc 3d 4, 6 [App Term, 2d & 11th Jud Dists 2007]). Accordingly, so much of the order as denied defendants' motion for summary judgment is vacated and the matter is remanded to the court below for a new determination of the motion. Defendants are afforded 30 days from the date of the order entered hereon to serve and file reply papers in further support of their motion.

We pass on no other issue.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: July 10, 2008