Weissman v. Blue Cross, 486 N.E.2d 912 (N.Y. 1985)

A trial court does not abuse its discretion when it refuses to consider a late affidavit submitted in opposition to a motion for summary judgment, especially when the delay is due to a failure to recognize the necessity of the affidavit and the opposing party objects.

Summary

Weissman sued Blue Cross. Blue Cross moved for summary judgment. On the day the motion was to be submitted, but after the motion was marked submitted, Weissman’s attorney delivered Weissman’s affidavit to the judge’s law secretary, claiming it was inadvertently omitted. Blue Cross objected and requested an opportunity to reply if the affidavit was considered. The New York Court of Appeals held that the Special Term’s refusal to consider Weissman’s affidavit was not an abuse of discretion, given the circumstances of the delay and the lack of prior notice of the affidavit.

Facts

Weissman sued Blue Cross. Blue Cross filed a motion for summary judgment against Weissman. Weissman’s attorney submitted an affirmation opposing the motion weeks before the return date, attaching several documents but omitting an affidavit from Weissman himself. Weissman’s cross-motion for summary judgment, filed six days before the return date, also did not mention an affidavit from Weissman. After the motion was marked as submitted, Weissman’s attorney delivered Weissman’s affidavit to the judge’s law secretary. Blue Cross did not receive a copy until the next day and promptly objected, requesting an opportunity to reply if the court considered it.

Procedural History

Blue Cross moved for summary judgment in Special Term. Weissman attempted to submit a late affidavit. Special Term refused to consider the late affidavit and granted summary judgment for Blue Cross. The Appellate Division affirmed. Weissman appealed to the New York Court of Appeals.

Issue(s)

Whether Special Term abused its discretion as a matter of law by refusing to consider an affidavit of the plaintiff which was delivered to the Judge’s law secretary on the same day as, but several hours after, the motion was marked “submitted” on call of the calendar, because it had been inadvertently omitted from plaintiff’s papers.

Holding

No, because the inadvertence involved failing to realize the necessity for an affidavit from the party and because the defendant objected to its consideration and requested an opportunity to reply.

Court’s Reasoning

The Court of Appeals reasoned that the critical error was not a mere oversight in enclosing a prepared affidavit, but a failure to recognize the need for Weissman’s personal affidavit in the first place. The court emphasized that Weissman’s attorney’s affirmation, prepared well in advance, did not refer to any intention to submit Weissman’s affidavit. Similarly, the cross-motion for summary judgment made no mention of it. Furthermore, Blue Cross’s motion included a CPLR 2214 (b) notice, requiring answering papers to be served at least five days before the return date, which was not met. Considering these factors, the court concluded that Special Term acted within its discretion in refusing to consider the late affidavit. The court cited Zuckerman v City of New York, 49 NY2d 557 which likely stands for the proposition that an attorney’s affidavit without personal knowledge is insufficient to oppose summary judgment. The court implicitly held that the trial court is not required to allow supplemental submissions after the motion has been marked submitted, especially when the opposing party would be prejudiced. The decision underscores the importance of timely and complete submissions in motion practice and the discretion afforded to trial courts in managing the motion calendar.