Wade Clark Mulcahy LLP

In Charles v. Nouveau El. Indus., Inc., the 2nd Department recently addressed the standard to vacate an order for summary judgment in an unusual case where the trial court never received briefs served on other counsel and treated the motion as unopposed. In that case, the plaintiff sustained injuries after she tripped while entering an elevator due to an alleged 2-inch height difference between the elevator door and the floor of the medical center. Following discovery, the defendant elevator repair company moved for summary judgment. Plaintiff claims that she served her opposition to the defendant via email and to the Supreme Court via mail. Defendant similarly served its reply to plaintiff via email and to the court via mail, but the court never received the papers and granted the motion as unopposed. The trial court subsequently denied plaintiff’s motion to vacate the original order.

The Second Department observed that to challenge the order, plaintiff must establish a reasonable excuse for the default and that there is a potentially meritorious opposition to the summary judgment motion. The Appellate Division reasoned that, “a court has [the] discretion to accept law office failure as a reasonable excuse where that claim is supported by a detailed and credible explanation." Since defendant did not oppose the lower court’s determination that plaintiff established a reasonable excuse for there not being an opposition on the record, the Second Department found that plaintiff’s opposition established a triable issue of fact as to whether the defendant had actual or constructive notice of the hazardous elevator floor condition. Accordingly, the Court reversed the decision of the trial court and denied defendants summary judgment motion.

This case is noteworthy in that an appellate court was willing to overturn an award of summary judgment on an unopposed motion because plaintiff was able to demonstrate that it did prepare a timely opposition and was able to demonstrate issues of fact to defeat the motion. Maintaining a proper record of service of the briefs was critical to the plaintiff’s success in overturning the trial court’s rulings.