Opinion
Index No. 514230/2023
10-23-2024
855 Dekalb Avenue LLC, Plaintiff, v. 855 Dekalb LLC, Connectone Bank and Hanover Community Bank, Defendants.
Gutman Weiss, P.C., Brooklyn (Dov Medinets of counsel), for plaintiff. Jacobowitz Newman Tversky LLP, Cedarhurst (Jonathan Weg of counsel), for defendant 855 Dekalb LLC.
Unpublished Opinion
Gutman Weiss, P.C., Brooklyn (Dov Medinets of counsel), for plaintiff.
Jacobowitz Newman Tversky LLP, Cedarhurst (Jonathan Weg of counsel), for defendant 855 Dekalb LLC.
Aaron D. Maslow, J.
The following numbered papers were read: NYSCEF Doc Nos. 103 and 104, stipulation; various email correspondence.
Background
Motion Sequence Nos. 4 and 5 were set to be heard before this Court on Wednesday,. On October 14, 2024 (Columbus Day), Defendant 855 Dekalb LLC's counsel contacted our Part Clerk notifying this Court that due to religious observance of the Jewish holiday of Sukkot on, their office would be closed. Said counsel inquired whether their motion would be able to be decided upon submission or whether oral argument was required and, if so, whether an adjournment would be granted to accommodate the religious observance. The Court informed all counselors on the following day, Tuesday, October 15, 2024, that the adjournment request would be granted once it was formally filed via NYSCEF. The Court was then contacted that same day by Defendant's counsel stating that they would reach out to Plaintiff's counsel and arrange for an adjournment stipulation and subsequently upload it.
On October 22, 2024, the eve of oral argument on these motions, the Court received an email from Plaintiff's counsel stating that they never filed the stipulation, and it was still marked for oral argument on. Plaintiff's counsel conveyed to Defendant's counsel that a stipulation needed to be filed "ASAP." Assistant Law Clerk Ashley Kaminski responded to counselors by stating that an adjournment request via stipulation or application may only be reviewed if it is formally filed to NYSCEF, and to contact the court when it was properly filed; this was in accordance with IAS Part 2's Rules' requirement that "Stipulations of adjournment and applications for adjournment shall be submitted through NYSCEF, with a copy sent by email to the Part Clerk and the law clerks" (https://ww2.nycourts.gov/courts/2jd/kings/civil/MaslowRules.shtml [last accessed Oct. 23, 2024]). Plaintiff's counsel emailed this Court in the afternoon stating that the adjournment request had been filed on NYSCEF and apologized for it being late, as there was a miscommunication with Defendant's counsel on who would be filing it. The stipulation to adjourn had been filed at 3:02 p.m.
Discussion
This Court's Part Rules, at Part II (Motions and Special Proceedings), Subpart D (Adjournments), §3, provide in pertinent part:
§ 1. All adjournments are at the discretion of the Court. A request for an adjournment shall be made through a stipulation or, if consent is not received from other counsel, through an application. Stipulations of adjournment and applications for adjournment shall be submitted through NYSCEF, with a copy sent by email to the Part Clerk and the law clerks.... The deadline for filing such stipulations of adjournments and applications for adjournments shall be 5:00 p.m. of the third court business day prior to the scheduled motion date. (See Shmerelzon v Gravesend Mgt., Inc., 80 Misc.3d 1233 [A], 2023 NY Slip Op 51155[U)] [Sup Ct, Kings County 2023].) (https://ww2.nycourts.gov/courts/2jd/kings/civil/MaslowRules.shtml [last accessed Oct. 23, 2024]).
Under normal circumstances, the parties' stipulation to adjourn would have been denied for noncompliance with the Part Rules (see Thompson v Doe, 83 Misc.3d 1246 [A], 2024 NY Slip Op 50930[U] [Sup Ct, Kings County 2024]; Matter of USAA v Ford, 81 Misc.3d 1225 [A], 2024 NY Slip Op 50004[U] [Sup Ct, Kings County 2024]; Shmerelzon v Gravesend Mgt., Inc., 80 Misc.3d 1233 [A], 2023 NY Slip Op 51155[U)] [Sup Ct, Kings County 2023]; Wade v Khadka, 80 Misc.3d 1222 [A], 2023 NY Slip Op 51058[U] [Sup Ct, Kings County 2024]). The imperative underpinning this adherence to the adjournment request deadline is that motions are reviewed in advance of oral argument so that the Court is familiar with the facts and issues and can ask counsel pertinent questions. Once prepared, the effect of an adjournment is to cause the Court to have to revisit the papers to refresh the Court's knowledge of the dispute, which squanders judicial time.
The parties' stipulation to adjourn submitted on Tuesday, October 22, 2024, was untimely inasmuch as it was filed at the last minute, the day before the motion was to be argued. It is noted that when the matter first came up, on Tuesday, October 15, 2024, there was still time to timely file a stipulation to adjourn; the three-court business day deadline was Friday, October 18, 2024. While Thursday, October 17, and Friday, October 18 were the first two days of Sukkot, and presumably the attorneys did not perform work then, the stipulation could have been filed the day the Court was contacted, Tuesday, October 15, or the next day, Wednesday, October 16, 2024.
However, the Court endeavors to accommodate litigants, jurors, and attorneys for religious observance situations. This includes having accommodated a different attorney who observes Friday as a holy day; the attorney was instructed to inform the Court so that oral arguments could be scheduled for a Thursday.
Wednesday,, was the day of Hoshanah Rabbah, the seventh day of Sukkot. "This day is marked by a special synagogue service, the Hoshana Rabbah, in which seven circuits are made by the worshippers with their lulav and etrog, while the congregation recites Hoshanot. It is customary for the scrolls of the Torah to be removed from the ark during this procession." (Hoshana Rabbah, Wikipedia, https://en.wikipedia.org/wiki/Hoshana_Rabbah [last accessed Oct. 23, 2024].) While some who observe the holiday will perform work, others will not, at least until after morning services (see Yehuda Altein, 11 Hoshanah Rabbah Facts Every Jew Should Know, https://www.chabad.org/library/article_cdo/aid/6100410/jewish/11-Hoshanah-Rabbah-Facts-Every-Jew-Should-Know.htm [last accessed Oct. 23, 2024]). "Although important, Hoshana Rabbah is not a yom tov or Shabbat (day on which work is forbidden). We are still allowed to work and do everyday activities, like go to school, cook, drive in cars and so on." (Dovi Zwebner, Hoshanah Rabbah, https://www.sefaria.org/sheets/16895?lang=bi.)
The two words in the name of the holiday are variantly spelled as Hoshana and Rabba.
Government actions impacting religious observance must be narrowly tailored to advance a compelling state interest (see Roman Catholic Diocese of Brooklyn v Cuomo, 592 U.S. 14 [2020]). While the court system has an interest in conducting motion argument calendars in an efficient manner and determining motions as soon as possible so that litigation can proceed, this interest must yield to the religious observance of attorneys. Especially where the parties are in accord with an adjournment, motion arguments can be adjourned. Courts endeavor to accommodate those who celebrate religious holidays (see People v Robinson, 63 A.D.3d 531 [1st Dept 2009]; People v Andolina, 23 A.D.3d 573, 573-574 [2d Dept 2005]; People v Paulino, 287 A.D.2d 302 [1st Dept 2001]; People v Marrero, 110 A.D.2d 785, 785 [2d Dept 1985]; cf. People v Berger, 234 A.D.2d 980, 981 [4th Dept 1996]).
Accordingly, IT IS HEREBY ORDERED that despite the untimeliness of the stipulation to adjourn, the within two motions are adjourned to a date to be determined by Part Clerk.