Opinion
Index 67634/2017
05-01-2019
ARTHUR J. WASHINGTON JR., Plaintiff, v. TOMPKINS LANDSCAPING CORP., CROMPOND APARTMENT OWNERS INC, A.J. INDUSI PLUMBING AND HEATING INC., Defendants. Seq. No. 3
Joan B. Lefkowitz, Judge
Unpublished Opinion
DECISION & ORDER
Joan B. Lefkowitz, Judge
The following papers were read on this cross-motion by plaintiff (Sequence No. 3) for an order granting plaintiff partial summary judgment as to liability and such other further and different relief as this Court deems just and proper.
Notice of Cross-Motion - Affidavits - Exhibit A [NYSCEF Docs. 82 through 87]
Affirmation in Opposition- Exhibit A [NYSCEF Docs. 90-91]
Affirmation in Opposition- Exhibit A [NYSCEF Docs. 93-94]
Affirmation/Affidavits [NYSCEF Docs. 95-99]
Affirmation in Opposition-Exhibit A-Affirmations [NYSCEF Docs. 100-102]
Affirmation in Further Support of Cross-Motion [NYSCEF Doc. 103]
Plaintiff commenced this action to recover for injuries allegedly sustained when he fell into a trench at a work site. As relevant here, following the completion of discovery proceedings, a trial readiness order was entered on November 16, 2018 (NYSCEF Doc. 24). Plaintiff filed a note of issue and certificate of readiness on December 5, 2018 (NYSCEF Doc. 26).
On January 22, 2019, defendant, Crompond Apartment Owners, Inc. (Crompond) moved for an order pursuant to CPLR Rule 3212, dismissing plaintiffs complaint and all cross-claims against it and granting it a conditional order of common-law indemnity in favor of Crompond and against defendant Tompkins Landscaping Corp. ("Tompkins"), and A.J. Indusi Plumbing and Heating, Inc. ("Indusi"). On the same day, defendant Tompkins moved for an order pursuant to CPLR Rule 3212, dismissing plaintiffs complaint and all cross-claims against it.
On March 20, 2019, plaintiff filed a Notice of Cross-Motion. Plaintiff specified the relief sought as an order granting plaintiff partial summary judgment on liability.
Prior to addressing the merits of the parties' arguments, 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 current 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/DCM_protocol_June30_17.pdf). The trial readiness order 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, defendants' motions were filed within the forty-five day deadline but plaintiffs cross-motion was filed on March 20, 2019, 105 days after plaintiff filed the note of issue. Accordingly, defendants' initiatory papers were timely. By contrast, plaintiffs March 20, 2019 cross-motion for summary judgment - filed 60 days late -clearly runs afoul of the DCM Protocol Part Rules.
Plaintiffs untimely cross-motion is a clear example of the dilatory tactics that adversely impact the timely disposition of cases. Rather than filing his motion within the applicable period, plaintiff waited until after his adversaries filed a motion before filing his own motion. Plaintiff did not file his 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]). He also failed to provide 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 their untimely motion as a "cross-motion." Not only does such practice allow the offending and untimely party to take unfair advantage of the timely party's timeliness, it prejudices the timely party by providing only a short time to respond to the "cross-motion." Rather than having the Court extend the time to respond, and thus allow counsel to succeed in both detouring around the rules and in delaying the progress of the case unjustifiably, the consequences should be boume squarely by the offending party by denying the cross-motion as untimely.
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. Moreover, the late filing of such cross-motions places plaintiffs adversaries in an inequitable and prejudicial position where there is little time to oppose cross-motions that should have been made as initiatory motions. Granting a further adjournment would only enable the offending party to succeed in obtaining unwarranted delay-delay for which no good cause has been shown. Therefore, such cross-motions 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 plaintiffs cross-motion is denied as untimely; and it is further, ORDERED that defendants' motions are transferred to an IAS Part for determination on the merits; and it is further
ORDERED that defendants shall serve a copy of this Decision and Order, with notice of entry, upon plaintiff within five days of entry.
The foregoing constitutes the Decision and Order of this Court.