Opinion
9195/08.
Decided July 1, 2011.
Plaintiff Maria Palotta was represented by John D. Pontisakos, Esq. of Mark J. Rayo, P.C. Defendants/ third-party plaintiffs Saltru Associates Joint Venture, NY and Ceasar's Bay Bazaar Limited Partnership were represented by Regine Dely-Lazard, Esq. of Hoey, King Epstein. Defendant/ third-party defendant B R Concrete Corp. (improperly plead as J R Concrete Corp.) was represented by Alyse Berger Heilpern, Esq. of Braff, Harris Sukoneck.
With its motion, defendant/third-party defendant B R Concrete Corp. (improperly plead as J R Concrete Corp.) (hereinafter "B R") seeks leave to re-file for summary judgment "out of time". B R's prior summary judgment motion, which was timely served within 60 days of the filing of the Note of Issue ( see Kings County Supreme Court Uniform Civil Term Rules, Part C Rule 6), was "marked off" the motion calendar due to B R's failure to appear on the return date of the motion.
B R does not cite to any rule, statute, or any other legal authority supporting, or even recognizing, a motion for "leave to re-file for summary judgment out of time". However, there is no CPLR provision, rule, or other authority setting forth the consequences of the "marking off" of a motion, and practitioners may not know whether or how a motion that has been "marked off" the motion calendar may yet get a hearing.
Rule § 202.27 of the Uniform Civil Rules of the Supreme Court and the County Court, which addresses calendar defaults, provides:
"At any scheduled call of a calendar or at any conference, if all parties do not appear and proceed or announce their readiness to proceed immediately or subject to the engagement of counsel, the judge may note the default on the record and enter an order as follows:
(a) If the plaintiff appears but the defendant does not, the judge may grant judgment by default or order an inquest;
(b) If the defendant appears but the plaintiff does not, the judge may dismiss the action and may order a severance of counterclaims or cross claims;
(c) If no party appears, the judge may make such order as appears just." (Uniform Rules for the New York State Trial Courts, Part 202, § 202.27, 22 NYCRR § 200.27.)
Rule § 202.27 does not specifically address motion calendars, or mention the "marking off" of a motion as a penalty for failing to answer a calendar call.
Nonetheless, the "marking off" of a motion based upon the failure of the movant to answer the calendar call is well-recognized in Kings County Supreme Court. Part C Rule 7 of the Kings County Supreme Court Uniform Civil Term Rules provides that the failure to appear "at the default calendar call will result in a default order being entered or the motion being marked off the calendar." The Part 59 Calendar Rules provide that, "the first and only nonappearance of a movant will result in a mark-off'."
Both of the aforementioned rules recognize that the "marking off" of a motion is a more lenient penalty than the issuance of a default order. To vacate a default order requires a movant to demonstrate a reasonable excuse for the default and a meritorious claim or defense ( see Winthrop v Metropolitan Suburban Bus Auth ., 78 AD3d 685, 686 [2d Dept 2010]; Donovan v Chiapetta , 72 AD3d 635 , 636 [2d Dept 2010]; Gironda v Katzen , 19 AD3d 644 , 644-45 [2d Dept 2005]; Weiss v Croce, 167 AD2d 465, 465 [2d Dept 1990]; Pedone v Avco Financial Services of New York, Inc., 102 AD2d 885, 886 [2d Dept 1984]); whereas the "marking off" of a motion does not require such a demonstration. When a motion is marked off the calendar, generally the movant may simply re-file and re-serve the motion. ( See e.g. Lewis v New York City Transit Authority, 100 AD2d 896, 896 [2d Dept 1984] [failure of counsel to appear in support of initial motion, which resulted in motion being marked off pursuant to local rule, did not bar a second motion].)
It is a separate question, however, whether a re-filed and re-served motion is deemed made as of the date of service of the prior motion if in the interim the motion becomes untimely. In light of the apparent lack of caselaw or rule regarding the consequences of "marking off" a motion, there is also no legal authority supporting the proposition that re-service of the motion relates back in time to the service of the prior marked-off motion. Even if there were grounds to allow re-service of the motion to relate back to the time of service of the marked-off motion, B R has not, to date, re-served and re-filed its motion for summary judgment. Instead, B R moves for leave to re-file its summary judgment motion. In so doing, B R fails to submit a complete copy of its prior summary judgment motion papers.
If a previously marked-off motion is to be treated as if made when the prior motion was made, the movant should be required to make the showing required to vacate a default order, i.e., reasonable excuse for the default and a meritorious position on the motion. Where a motion for summary judgment is concerned, those standards appear to merge in the requirement, found in both the statute and court rule, that "good cause" be shown for leave to make the motion late ( see CPLR 3212[a]; King County Supreme Court Uniform Civil Term Rules, Part C Rule 6.)
CPLR 3212(a) provides, among other things, that the court may set a date after which no summary judgment motion may be made, such date being no earlier than thirty days after the filing of the note of issue. Part C Rule 6 of the Kings County Supreme Court Uniform Civil Term Rules provides that "motions for summary judgment may be made no later than 60 days after the filing of a Note of Issue", and that the time limitation "may only be extended by the Court upon good cause shown." "[S]ummary judgment motions should be timely made, or good cause shown." ( Miceli v State Farm Mutual Automobile Ins. Co. , 3 NY3d 725, 726.)
Considering the instant motion as seeking an extension of time to move for summary judgment on good cause shown, B R fails to demonstrate good cause for an extension. In this regard, it should be noted that the case has already been adjourned on the Jury Coordinating Part calendar for purposes of hearing the instant motion, and is scheduled for another appearance on that calendar on September 14, 2011.
In support of its motion, B R sets forth the following procedural history. B R claims that "the motion was originally returnable on January 14, 2011", and that "[a]t the request of the plaintiff the motion was adjourned to Monday, February 7, 2011". On Friday, February 4, 2011, the parties entered into a stipulation to adjourn the motion to March 7, 2011, which is not a Part 59 motion date, and faxed the stipulation to chambers. The Court did not consent to the adjournment date, and left a message on the voice-mail of a legal assistant at B R's counsel's office indicating that the stipulation was not approved. B R's counsel affirms that she "did not become aware that the adjournment request was denied until Tuesday, February 8, 2011 because the [legal assistant] was out of the office on February 7, 2011 due to an illness."
B R's recitation of the procedural history is not entirely accurate. While B R made its prior motion returnable on January 14, 2011, such date was not a Part 59 motion date. As such, the Motion Support Office rescheduled the motion to February 7, 2011. ( See Kings County Supreme Court Uniform Civil Term Rules, Part C Rule 2 ["[i]rrespective of the return date indicated in the notice of motion, motions will be rescheduled by the Motion Support Office to a date designated by the assigned Judge"].) B R does not submit any evidence demonstrating that the adjournment was "at the request" of Plaintiff (even though such a request may have been made), and even if such request was made, the motion was rescheduled based upon availability on the Part 59 motion calendar. As such, the first return date of the motion was February 7, 2011.
Kings County Supreme Court Uniform Civil Term Rules provide, "Unless the Judge's Part Rules provide otherwise, motions may be adjourned twice, on consent, without appearance, for a period not to exceed sixty (60) days from the initial return date of the motion." ( See Kings County Supreme Court Uniform Civil Term Rules, Part C Rule 4.) The Part 59 Calendar Rules, which permissibly vary from the Kings County Supreme Court Uniform Civil Term Rules, provide that "[d]ispositive motions, including motions for dismissal or summary judgment . . . may be adjourned once on consent of all parties, with a schedule for remaining briefing", and that "application for adjournment may be made before the return date by stipulation faxed to chambers, or on the calendar call on the return date."
Here, B R indicates that a stipulation to adjourn was faxed to chambers, but was not accepted by the Court. B R's counsel affirms that she "did not become aware that the adjournment request was denied until Tuesday, February 8, 2011 because the [legal assistant] was out of the office on February 7, 2011 due to an illness." Nonetheless, B R's counsel sets forth no reason for her assumption that the application for an adjournment was granted. Indeed, B R faxed the stipulation on the Friday afternoon prior to the Monday return date without confirming receipt and acceptance of the stipulation. Even though the Part 59 Calendar Rules permit parties to submit a stipulation to adjourn first-time-on summary judgment motions, the parties must adjourn the motion to a Part 59 motion date.
B R's failure to communicate with chambers and confirm an adjourned return date can at best be characterized as a "law office failure" that resulted in the marking-off of the summary judgment motion. This error, coupled with B R's failure to promptly re-file and re-serve its summary judgment motion, or indeed to make this motion until a month after counsel learned that the request for an adjournment had been denied, cannot constitute "good cause" for allowing B R to move for summary judgment now, while the case has already been placed on the Jury Coordinating Part calendar. To allow such motion would burden B R's adversaries with having to oppose three motions, instead of one, and would require yet another appearance on the Part 59 calendar while the case is on the trial calendar.
Indeed, the underlying policy of requiring summary judgment motions to be made within a certain period of time is to prevent "the practice of delaying such motions until the eve of trial". ( See Miceli v State Farm Mutual Automobile Ins. Co., 3 NY3d at 726.) "Law office failure" is routinely rejected as "good cause" for an extension of the time to move for summary judgment. ( See Azcona v Salem , 49 AD3d 343, 343 [1st Dept 2008]; Breiding v Giladi , 15 AD3d 435 , 435 [2d Dept 2005]; cf. Fofana v 41 West 34th Street, LLC , 71 AD3d 445 , 448-49 [1st Dept 2010].)
Accordingly, B R's motion is DENIED.