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Doctor’s Delay In Providing Opposing Affidavit Doesn’t Warrant Threshold Summary Judgment (NY)

August 29, 2013

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In <a href="" target="_blank" rel="noopener"><i>Wilson v. Rotondi</i></a>, the plaintiff was injured in a motor vehicle accident. The defendant moved for summary judgment because the plaintiff did not sustain serious injury as required by the Insurance Law.
Plaintiff’s attorney failed to oppose the motion.  The motion was initially adjourned to allow plaintiff time to secure a report from the treating neurologist.  However, on the adjourn date, plaintiff’s counsel had not obtained the affirmation from the physician to submit to the court.  Therefore, the court granted defendant’s motion for summary judgment “on default.”  The plaintiff moved to vacate this order and submitted an affidavit from her treating chiropractor.  The trial court denied the plaintiff’s motion to vacate finding plaintiff failed to demonstrate a reasonable excuse for the failure to respond or provide a potentially meritorious defense to defendant’s motion.
The Second Department reversed the decision. Although the trial court had the discretion to grant the motion on default, the Appellate Division found that plaintiff’s counsel did not exhibit a “pattern of willful neglect.” Rather, the delay was caused by the treating physician who failed to timely provide his report.  Therefore, the plaintiff would not be blamed for his client’s doctor’s delay.
The Appellate Division then found that the defendant did not establish a prima facie entitlement to summary judgment.
This case is a good example of the Appellate Division’s preference to decide cases on the merits. Still, the case does allow attorneys to blame third-parties for a failure to timely oppose a motion. Here, the plaintiff’s counsel neglected the motion and the Appellate Division was unwilling to dismiss the case.  Therefore, even if a party fails to timely oppose a motion, an attorney should still request the trial court decide a motion for summary judgment on the merits.
Specials thanks to Anne Mulcahy for her contributions to this post.  For more information, please contact Paul Clark at <a href=""></a>.


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