Chiemi v Redland Ins. Co.

[*1] Chiemi v Redland Ins. Co. 2012 NY Slip Op 51442(U) Decided on July 18, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 18, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., PESCE and ALIOTTA, JJ
2010-2765 Q C.

Roberto Chiemi, LMT, as Assignee of JERRY WILSON, Respondent,

against

Redland Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered April 13, 2010. The order, insofar as appealed from, denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. On the return date, the motion was adjourned for approximately one year with the new return date falling on a Tuesday. Defendant served a cross motion for summary judgment dismissing the complaint on the Friday before the new return date, i.e., four calendar days before the return date. Plaintiff did not submit opposition to defendant's cross motion. The Civil Court denied both the motion and the cross motion. Defendant appeals from so much of the order as denied its cross motion.

Under the circumstances presented, we decline to consider defendant's cross motion on the merits and affirm its denial on the ground that defendant failed to demonstrate that it had been timely served.

Plaintiff's notice of motion states "Please take notice that answering affidavits, if any, are [*2]to be served upon the undersigned within seven (7) days prior to the return date of the within application." We need not decide whether, as plaintiff argues, this was a proper demand, pursuant to CPLR 2214 (b), that any cross motion be served seven days before the return date of the motion since, in any event, defendant failed to even demonstrate that the cross motion was timely and properly served pursuant to CPLR 2215.

Pursuant to CPLR 2215, if CPLR 2214 (b) has not been invoked, cross motions are to be served three days prior to the time at which the motion is noticed to be heard. If the cross motion is served by mailing, it must be served six days prior to the return date for the motion (CPLR 2215 [a]) and if it is served by overnight delivery, it must be served four days prior to the return date (CPLR 2215 [b]). Defendant served the cross motion four days prior to the return date, but its affidavit of service failed to allege that service was made by overnight delivery or to offer sufficient facts to support such a finding (see CPLR 2103 [b] [6]).

Since plaintiff did not have an adequate opportunity to rebut the allegations contained in the cross motion (see Mango v Long Is. Jewish-Hillside Med. Ctr., 123 AD2d 843, 844 [1986]), including defendant's allegations that the services at issue were not medically necessary, the cross motion should not have been considered.

Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: July 18, 2012