Roger Jordan,
Plaintiff,
against
Joseph Verderosa, SEAN L. ST. BERNARD and
"JOHN/JANE DOE," Defendants.
|
15608/12
Plaintiff
Boris Bernstein, Esq.
Davidoff and Associates
Forest Hills NY
Defendant:
Umberto Correia, Esq.
James G. Bilello Assoc.
Westbury NY
Arthur M. Schack, J.
In this personal injury action, plaintiff ROGER JORDAN (JORDAN) cross-moves
for partial summary judgment on liability, pursuant to CPLR Rule 3212 (a). Plaintiff
JORDAN's cross-motion is in opposition to the motion of defendant JOSEPH
VERDEROSA (VERDEROSA), to preclude defendant SEAN L. ST. BERNARD (ST.
BERNARD) from offering any evidence at the trial of this action. JORDAN's instant
cross-motion is denied for being moot and untimely. Defendant VERDEROSA withdrew
his motion to preclude defendant ST. BERNARD's testimony when it was discovered
that defendant ST. BERNARD, in December 2013, settled with plaintiff JORDAN and
[*2]plaintiff JORDAN discontinued the action against
defendant ST. BERNARD. Thus, the instant cross-motion is moot. Further, in the
absence of a timely motion for summary judgment and the failure by plaintiff JORDAN
to demonstrate any good cause to consider the untimely cross-motion on its merits, the
instant cross-motion must be denied.
Discussion
The Court in Giambona v Hines (104 AD3d 811 [2d Dept 2013]),
instructed at 812:
As a general rule, an untimely motion or cross motion for summary
judgment may be considered on its merits if there is a timely, pending
motion for summary judgment made by another party on nearly
identical
grounds' (Grande v
Peteroy, 39 AD3d 590, 592 [2007]; see
Homeland Ins. Co. of NY v National Grange Mut. Ins. Co., 84
AD3d
737 [2011])." Here, however, the appellant's motion for summary
judgment was not responsive to a timely, pending motion for summary
judgment, as it was made after the Supreme Court decided the other
motions for summary judgment in the case (see Bicounty
Brokerage
Corp. v Burlington
Ins. Co., 101 AD3d 778 [2d Dept 2012]). As the
appellant failed to proffer any other excuses that would constitute good
cause for the delay in making his motion, the court properly declined
to consider it on its merits (see Chechile v Magee, 66 AD3d 625, 625-
626 [2009].
In the instant action, plaintiff JORDAN's "cross motion, in effect, for
summary judgment was not responsive to a timely, pending motion for summary
judgment and, therefore, the Supreme Court was without authority to consider it on its
merits (see Brill v City of New
York, 2 NY3d 648, 650-651 [2004])." (Bicounty Brokerage Corp. v
Burlington Ins. Co., supra, at 780).
Further, plaintiff JORDAN's cross motion is untimely, in violation of CPLR
Rule 3212 (a) and Kings County Supreme Court Uniform Civil Term Rule C (6). CPLR
Rule 3212 (a) states:
Time; kind of action. Any party may move for summary
judgment in any action, after issue has been joined; provided however,
that the court may set a date after which no such motion may be
made,
such date being no earlier than thirty days after the filing of the note of
issue. If no such date is set by the court, such motion shall be made
no
later than one hundred twenty days after the filing of the note of
issue,
except with leave of court on good cause shown. [Emphasis
added]
Kings County Supreme Court Uniform Civil Term C (6), effective January
2, 2010, and derived from the prior Kings County Supreme Court Uniform Civil Term
Rule 13, states:
Post Note of Issue Summary Judgment Motion: In cases where the
City of New York is a defendant and is represented by the Tort Divisionof
the Corporation Counsel's office, summary judgement motions maybe made no later than
120 days after the filing of a Note of Issue. In all
other matters, including third party actions, motions for
summary
judgment may be made no later than 60 days after the filing of a
Note of Issue. In both instances the above time limitations may
only
be extended by the Court upon good cause shown. See CPLR
3212 (a). [Emphasis added].
In the instant action, plaintiff JORDAN made the instant summary judgment cross-
motion on April 10, 2014, 230 days post note of issue. Plaintiff JORDAN failed to make
any showing of good cause for leave of the Court for an extension of time to make the
instant summary judgment cross-motion more than 60 days beyond the August 23, 2013
filing of the note of issue.
The Court in dealing with the "60-day rule," without any good cause shown
for an extension for making a summary judgment cross-motion cannot extend the
deadline for a summary judgment cross-motion. The Court in Bivona v Bob's Discount Furniture
of NY, LLC (90 AD3d 796 [2d Dept 2011]), instructed at 796:
"In the absence of a showing of good cause for the delay in
filing a motion for summary judgment, the court has no discretion
to entertain even a meritorious nonprejudical motion for summary
judgment.'" Greenpoint Props, Inc. v Carter, 82 AD3d 1157, 1158
[2011], quoting John P. Krupski & Bros., Inc. v Town Bd. of
Southold,
54 AD3d 899, 901 [2008]; see Brill v City of New York. 2 NY3d 648,
652 [2004]). Here, the defendant failed to establish "good cause" for
the delay in serving and filing its motion [CPLR 3212 [a]).
Accordingly,
the Supreme Court properly denied, as untimely, the defendant's motion
for summary judgment dismissing the complaint (see Brill v City
of
New York. 2 NY3d at 652; Castillo v Valente, 85 AD3d 1080 [2011];
Riccardi v CVS
Pharmacy, Inc., 60 AD3d 838 [2009]).
The instant cross-motion is late and untimely.
Failure to comply with court-ordered time frames must be taken seriously.
It
cannot be ignored. There are consequences for ignoring court rules and time
frames. The
Court of Appeals, in Gibbs v St. Barnabas Hosp., 16 NY3d 74, 81 [2010],
instructed:
As this Court has repeatedly emphasized, our court system
is
dependent on all parties engaged in litigation abiding
by the rules of
proper practice (see e.g. Brill v City of New York, 2 NY3d 748
[2004];
Kihl v Pfeffer, 94 NY2d 118 [1999]). The failure to comply
with
deadlines not only impairs the efficient functioning of the courts and
the adjudication of claims, but it places jurists unnecessarily in the
position of having to order enforcement remedies to respond to the
delinquent conduct of members of the bar, often to the detriment of
the litigants they represent. Chronic noncompliance with deadlines
breeds disrespect for the dictates of the Civil Practice Law and Rules
and a culture in which cases can linger for years without resolution.
Furthermore, those lawyers who engage their best efforts to comply
with practice rules are also effectively penalized because they must
somehow explain to their clients why they cannot secure timely
responses from recalcitrant adversaries, which leads to the erosion
of their attorney-client relationships as well.
"Litigation cannot be conducted efficiently if deadlines are not taken
seriously, and we
make clear again, as we have several times before, that disregard of
deadlines should not
and will not be tolerated (see Miceli v State Farm Mut. Auto Ins. Co., 3 NY3d
725
[2004]; Brill v City of New York, 2 NY3d 748 [2004]; Kihl v
Pfeffer, 94 NY2d 118
[1999]) [Emphasis added]." (Andrea v Arnone, Hedin, Casker,
Kennedy and Drake,
Architects and Landscape Architects, P.C., 5 NY3d 514, 521
[2005]). "As we made clear in Brill, and underscore here, statutory time
frames — like court-order time frames (see Kihl v Pfeffer, 94 NY2d
118 [1999]) — are not options, they are requirements, to be taken seriously by
the parties. Too many pages of the Reports, and hours of the courts, are taken up
with deadlines that are simply ignored [Emphasis added]." (Miceli at
726-726).
Therefore, the instant summary judgment cross-motion is denied. (See Mayorquin v AP Development,
LLC, 92 AD3d 849 [2d Dept 2012]; Bivona v Bob's Discount Furniture of
NY, LLC, supra; Deberry-Hall v County of Nassau, 88 AD3d 634 [2d Dept
2011]; Castillo v Valente, supra; Polanco v Creston Avenue
Properties, Inc., 84 AD3d 1337 [2d Dept 1011]; Riccardi v CVS Pharmacy,
Inc., supra; Finger v
Saal, 56 AD3d 606 [2d Dept 2008]; Kennedy v Bae, 51 AD3d 980 [2d Dept 2008]; McNally v Beva Cab Corp., 45
AD3d 820 [2d Dept 2007]; Davidson v Brisman, 40 AD3d 574 [2d Dept 2007]; Giordano v CSC Holdings,
Inc., 29 AD3d 948 [2d Dept 2006]; Bevilacqua v City of New York, 21 AD3d 340 [2d Dept
2005]; Milano v George, 17
AD3d 644 [2d Dept 2004]; First Union Auto Finance, Inc. v Donat, 16 AD3d 372 [2d
Dept 2005]).
Conclusion
Accordingly, it is
ORDERED, that the cross-motion by plaintiff ROGER JORDAN for partial
summary judgment on liability, pursuant to CPLR Rule 3212 (a), is denied.
This constitutes the Decision and Order of the Court.ENTER
___________________________
HON.
ARTHUR M. SCHACKJ. S. C.