From Casetext: Smarter Legal Research

Keller v. McDonald

Appellate Division of the Supreme Court of New York, Third Department
Jun 9, 2011
85 A.D.3d 1356 (N.Y. App. Div. 2011)

Opinion

No. 510732.

June 9, 2011.

Appeal from an order of the County Court of Cortland County (Ames, J.), entered July 31, 2009, which, upon reargument, affirmed an order of the City Court of the City of Cortland denying defendant's motion to dismiss the complaint.

Mary A. Osgood, Groton, for appellant.

Richard C. Van Donsel, Cortland, for respondent.

Before: Rose, Lahtinen, Kavanagh and McCarthy, JJ.


Plaintiff commenced this action in Cortland City Court alleging that defendant failed to repay a $5,000 loan. Defendant moved to dismiss the complaint as barred by the statute of frauds or, alternatively, for failure to state a cause of action. Plaintiff conceded at the hearing on the motion that her opposing papers were untimely, but she offered no excuse for the late service. Nonetheless, City Court accepted the papers, finding that no prejudice resulted from their untimeliness, and denied the motion on the merits. Defendant appealed to County Court, which ultimately affirmed, holding that City Court did not err in reading the responsive papers and had correctly decided the motion. Defendant appeals and we now affirm.

Pursuant to CPLR 2214, if papers served on a motion are not timely, they will not "be read in support of, or in opposition to, the motion, unless the court for good cause shall otherwise direct" (CPLR 2214 [c]; see Associates First Capital v Crabill, 51 AD3d 1186, 1187, lv denied 11 NY3d 702; Thermo Spas v Red Ball Spas Baths, 199 AD2d 605, 606). Here, because plaintiff offered no excuse for the late service, City Court should not have considered the untimely responsive papers ( see Mosheyeva v Distefano, 288 AD2d 448, 449; see also Thermo Spas v Red Ball Spas Baths, 199 AD2d at 606; Bush v Hayward, 156 AD2d 899, 901, lv denied 75 NY2d 709; Henderson v Stilwell, 116 AD2d 861, 862, lv denied 68 NY2d 606). Even without considering plaintiffs responsive papers, however, we conclude that the motion to dismiss was properly denied, inasmuch as the complaint asserts a cognizable claim that is not barred by the statute of frauds.

Ordered that the order is affirmed, with costs.


Summaries of

Keller v. McDonald

Appellate Division of the Supreme Court of New York, Third Department
Jun 9, 2011
85 A.D.3d 1356 (N.Y. App. Div. 2011)
Case details for

Keller v. McDonald

Case Details

Full title:DEBORAH KELLER, Respondent, v. TOM McDONALD, Appellant

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Jun 9, 2011

Citations

85 A.D.3d 1356 (N.Y. App. Div. 2011)
2011 N.Y. Slip Op. 4794
924 N.Y.S.2d 301

Citing Cases

Keller v. McDonald

Deborah KELLER, Respondent, v. Tom McDONALD, Appellant. Reported below, 85 A.D.3d 1356, 924 N.Y.S.2d 301.…