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Current Developments in the Commercial Divisions of the
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Posted: April 21, 2017

Court Rejects Late-Filed Opposition to Motion

On April 3, 2017, Justice Whelan of the Suffolk County Commercial Division issued a decision in Nationstar Mortgage, LLC v. MacPherson, 2017 NY Slip Op. 30677(U), striking an opposition to a motion for summary judgment because it was filed later than the date allowed in the parties’ stipulated briefing schedule.

Most of us have encountered at least once in our careers an opponent who appears to feel free to disregard court rules or agreements they make in the course of litigation because, usually, they get away with it. Not always. In Nationstar Mortgage, the court struck an opposition to a motion for summary judgment because it was filed four days late, explaining:

The parties filed a stipulation, as NYSCEF Doc. No. 25, adjourning the motion to July 13, 2016 “and the Opposition papers shall be served and filed by July 6,2016.” Here, the record reveals that the affirmation in opposition was not filed until July 10, 2016 as NYSCEF Doc. No. 26. Such a filing is untimely pursuant to the filed stipulation between the parties. Same was rejected by counsel for the plaintiff by notice of return and rejection as NYSCEF Doc. No. 28. . . . Here, the affirmation in opposition was not timely filed and an affidavit of service has never been filed. These defects render the opposing papers by the answering defendants jurisdictionally defective since the failure to provide proper service of a motion deprives the court of jurisdiction to entertain the motion. Since the affirmation in opposition violated the filed stipulation and the mandatory e-filing rules established by the Chief Administrator of the Courts, as authorized by the State Legislature in CPLR 2103(b)(7), the document is deemed untimely and a nullity.

(Internal quotations and citations omitted).

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