Opinion
Index 66875/2016
10-10-2019
THOMAS F. WALSH, JR., Plaintiff, v. CITY OF NEW ROCHELLE, JAMES C. ROMEL, DONALD DECATUS and CARMENE TAXI CORP., Defendants. Seq. No. 4
Joan B. Lefkowitz, Judge
Unpublished Opinion
DECISION & ORDER
Joan B. Lefkowitz, Judge
The following papers were read on this cross-motion (Seq. No. 4) by defendants, Donald Decatus and Carmene Taxi Corp. (collectively, "Carmene") for summary judgment in their favor on the issue of liability, together with such other and further relief as this court deems just and proper:
Notice of Cross-Motion; Affirmation in Support; Exhibits A-F NYSCEF record
Upon the foregoing papers, this motion is determined as follows:
This action was commenced on November 9, 2016 to recover for injuries allegedly sustained by plaintiff in a multi-car chain automobile accident on August 11, 2015 at the intersection of North Avenue and Rochelle Place, in New Rochelle, New York. Plaintiff alleges that his vehicle was struck by a vehicle being operated by defendant, Donald Decatus ("Decatus"), which had been struck by a garbage truck owned by the City of New Rochelle (the "City') and operated by James C. Romel ("Romel"). As relevant here, following the completion of discovery, a Trial Readiness Stipulation was so ordered on April 30, 2019 and plaintiff filed his Note of Issue on May 13, 2019.
On June 25, 2019, the City moved for summary judgment dismissing the first cause of action in the complaint on the grounds that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5104 (a) and 5102(d). On June 26, 2019, plaintiff moved for summary judgment as against defendants City and Romel. By cross-motion filed on June 27, 2019, Carmene moved for summary judgment dismissing the complaint on the grounds that plaintiff fails to meet the serious injury threshold requirement mandated by Insurance Law § 5102(d). On August 1, 2019, Carmene then again moved for summary judgment dismissing the complaint and all cross claims against them on the grounds that plaintiff failed to establish liability on their part.
Prior to addressing the merits of the motion, the court must address the issue of timeliness. In 2009, a new Differentiated Case Management (DCM) Protocol was introduced in Westchester County Supreme Court to ensure effective case management. The DCM Protocol was designed to ensure the timely prosecution of cases from inception to trial and facilitate settlements. As implemented, the DCM Protocol limits adjournments and delays and requires that the parties actively pursue the prosecution and defense of actions. Deadlines are enforced in Westchester County Supreme Court civil cases pursuant to the DCM Protocol.
In February 2016, the Chief Judge of the State of New York, Hon. Janet DiFiore, announced the "Excellence Initiative" for the New York State Unified Court System. The Excellence Initiative seeks to achieve and maintain excellence in court operations by eliminating backlogs and delays. The Excellence Initiative relies on "Standards and Goals" as the benchmark for the timely resolution of cases. The Ninth Judicial District is committed to carrying out the Chief Judge's Excellence Initiative and delivering justice in a timely and efficient manner to all that enter our courts.
The Court of Appeals has explained the importance of adhering to court deadlines as follows:
"As we made clear in Brill, and underscore here, statutory time frames-like court-ordered time frames-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" (Miceli v State Farm Mutual Automobile Insurance Company, 3 N.Y.3d 725, 726-727 [2004] [internal citations omitted]).
The Court of Appeals again stressed the importance of adhering to deadlines as follows:
"As this Court has repeatedly emphasized, our court system is dependent on all parties engaged in litigation abiding by the rules of proper practice. 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. For these reasons, it is important to adhere to the position we declared a decade ago that' [i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity'" (Gibbs v St. Barnabas Hosp., 16 N.Y.3d 74, 81 [2010] [internal citations omitted]).CPLR 2004 permits the court, in the exercise of its discretion, to grant an extension of time fixed by statute, rule or court order, upon a showing of good cause. "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 nonprejudicial motion for summary judgment'" (Greenpoint Props, Inc. v Carter, 82 A.D.3d 1157, 1158 [2d Dept 2011], quoting John P. Krupski & Bros., Inc. v Town Bd. of Southold, 54 A.D.3d 899, 901 [2d Dept 2008]; see Brill v City of New York, 2 N.Y.3d 648, 652 [2004]).
Pursuant to the DCM Protocol Part Rules with respect to post-note of issue summary judgment motions, "any motion for summary judgment by any party must be made within forty-five (45) days following the filing of the Note of Issue" (DCM Rule II.D, available at https://www.nycourts.gov/courts/9jd/diffCaseMgmt/DCMjDrotocol.pdf). The trial readiness order issued by this court on April 30, 2019 contains similar language. In addition, the Part Rules state in bold-face type:
"Counsel are cautioned that untimely motions cannot be made timely by denominating such as cross-motions. The failure of a party to serve and file a motion or cross-motion within the 45-day time period pursuant to this protocol and the Trial Readiness Order shall result in the denial of the untimely motion or cross-motion" (DCM Rule II.D [emphasis in original]).
While the DCM Protocol authorizes limited extensions of return dates on summary judgment motions, it invites no extension of the time for making such motions.
Based on the Part Rules set forth above, all summary judgment motions were due within 45 days of the filing of the note of issue. Here, the motions by the City and plaintiff, and Carmene's first motion, filed on June 25, 2019, June 26, 2019 and June 27, 2019, respectively, were filed within 45 days after plaintiff filed the note of issue. Accordingly, these motions were timely. By contrast, Carmene's second motion for summary judgment, denominated as a cross-motion but filed on August 1, 2019, was untimely.
Carmene's untimely cross-motion is a clear example of the dilatory tactics that adversely impact the timely disposition of cases. Rather than filing a single motion inclusive of the relief sought within the applicable period, Carmene waited until after plaintiff and the City filed their motions before filing a motion for summary judgment on liability. Carmene did not file the second motion by the deadline set forth in the trial readiness order, which provided that "[a]ny motion for summary judgment by any party must be served via NYSCEF within 45 days following the filing of the Note of Issue" [emphasis added]). Carmene also failed to establish, much less allege, good cause for the delay (see generally Brill v City of New York, 2 N.Y.3d 648 [2004]; see Gonzalez v Zam Apt. Corp., 11 A.D.3d 657, 658 [2d Dept 2004]).
Standards and goals for civil cases in which a note of issue is filed is one year from the filing of the note of issue. If the making of summary judgment motions is delayed for months, this will inevitably mean that either counsel will be rushed to trial or else the case will go over standards and goals. The situation is compounded by adjournments of such motions, particularly where the adjournments are repeated and the motions were already made late. While standards and goals are not immutable, and exceptions will always exist, compliance should be the norm, not the exception. If counsel are serious about their motions, they should make them on time or, if they believe that they cannot, they should apply for relief, setting forth the good cause for granting it. What they cannot do is avoid the necessity for showing good cause by simply waiting until some other party moves within the time allowed and then take advantage of that party by denominating an untimely motion as a "cross-motion."
It has been held that untimely cross-motions may be considered by the court, in the exercise of its discretion, where a timely motion for summary judgment has been made on nearly identical grounds (see Williams v Wright, 119 A.D.3d 670 [2d Dept 2014]). However, regardless of whether the grounds are identical, the case law does not mandate that the court must entertain such untimely cross-motions, especially where, as here, to do so would result in the circumvention of the Part Rules established by the court and reward non-compliance with court deadlines, without good cause. Further, permitting Carmene a second attempt to make a summary judgment motion would be highly prejudicial to all other parties. Therefore, although unopposed, Carmene's cross-motion filed on August 1, 2019 must be denied as untimely (see Finger v Saal, 56 A.D.3d 606 [2d Dept 2008]).
In view of the foregoing, it is hereby
ORDERED that the cross-motion by Donald Decatus and Carmene Taxi Corp. (Sequence No. 4) is denied; and it is further
ORDERED that motion Sequence Nos. 1, 2 and 3 are referred to an I.A.S. Part for determination; and it is further
ORDERED that plaintiff shall serve a copy of this Decision and Order, with notice of entry, upon defendants within five days of entry.
The foregoing constitutes the Decision and Order of this court.