Motion for Summary Judgment denied as untimely, following filing of Note of Issue.
|Claimant short name:||HAUCK|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||SOBO & SOBO, LLP
By: Robert M. Lefland, Esq.
|Defendant's attorney:||BROWN HUTCHINSON LLP
By: Kimberly J. Campbell, Esq.
William M. Swift, Esq.
|Third-party defendant's attorney:|
|Signature date:||November 29, 2021|
|See also (multicaptioned case)|
For the reasons set forth below, Defendant's Motion for summary judgment in its favor pursuant to CPLR 3212(a) is denied.
This Claim, which was filed in the office of the Clerk of the Court on October 24, 2018, asserts that, on May 10, 2018, at approximately 5:30 p.m., Claimant was at the State University of New York at New Paltz (hereinafter, "SUNY New Paltz") when she slipped and fell on a liquid on the southern stairwell, between the first and second floor of the Bouton hall residence building located on the SUNY New Paltz campus, as a result of Defendant's negligence (Claim, ¶¶ 5, 6).
CPLR 3212(a) provides that 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."
Here, Claimant filed her Note of Issue and Certificate of Readiness with the Clerk of the Court on March 11, 2020. The parties entered into a Preliminary Conference Order, which was "So Ordered" by the Court on March 14, 2019, that provided a date for the completion of discovery and a date for the filing of the Note of Issue and Certificate of Readiness. The Court further directed that "[a]ll … motions [for summary judgment] will be e-filed no later than forty-five (45) days after filing of the Note of Issue and Certificate of Readiness." The original date for the filing of the Note of Issue and Certificate of Readiness was October 31, 2019. By Stipulation of the parties, "So Ordered" by the Court on February 7, 2020, Claimant's time to serve and file the Note of Issue and Certificate of Readiness was extended to March 30, 2020. The 45-day time frame for making summary judgment motions was not addressed or amended in the stipulation and neither side requested that the time frame be lengthened. Thus, since the Note of Issue and Certificate of Readiness was filed on March 11, 2020, all motions for summary judgment had to be served and filed on or before Monday, April 27, 2020 (see General Construction Law § 25-a). However, on March 20, 2020, in response to the coronavirus public health emergency, Governor Andrew M. Cuomo issued Executive Order 202.8, which, among other things, tolled "any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state" until April 19, 2020 (9 NYCRR 8.202.8; see also Administrative Order of Acting Presiding Judge Richard E. Sise, dated March 16, 2020). That directive was modified and extended by subsequent Executive Orders until November 3, 2020 (see 9 NYCRR 8.202.67). The Covid-19 toll "is the equivalent of a pause … stopping the clock on March 20," 2020 (Patrick M. Connors, The COVID-19 Toll: Time Periods and the Courts During Pandemic, NYLJ, July 17, 2020). Nine (9) days elapsed between the date of the filing of the Note of Issue and Certificate of Readiness (March 11, 2020) and the issuance of Executive Order 202.8 (March 20, 2020). Consequently, the parties had until Wednesday, December 9, 2020, 36 days from the end of the tolling period on November 3, 2020, to timely serve and file a motion for summary judgment. Defendant's Motion was served and filed with the Clerk of the Court on October 19, 2021, some 10 months after the court-ordered filing deadline, accounting for the coronavirus toll.
The 45-day time limit imposed by the Court was a "strict requirement" (Wilmington Sav. Fund Socy., FSB v McKenna, 172 AD3d 1566, 1567 [3d Dept 2019]). As the Court of Appeals stated in Miceli v State Farm Mut. Auto. Ins. Co. (3 NY3d 725, 726 ): "[a]s we made clear in Brill(1) … statutory time frames - like court-ordered time frames (see Kihl v Pfeffer, 94 NY2d 118 ) - are not options, they are requirements, to be taken seriously by the parties."
An extension of the time limit imposed on making a motion for summary judgment may be granted by the Court only "on good cause shown" (CPLR 3212[a]). The Appellate Division, Third Department stated in Coty v County of Clinton (42 AD3d 612, 614 ) that the Court of Appeals in Miceli v State Farm Mut. Auto. Ins. Co. (supra) "held that ' "good cause" in CPLR 3212(a) requires a showing of good cause for the delay in making the motion - a satisfactory explanation for the untimeliness - rather than simply permitting meritorious, nonprejudicial filings, however tardy' (Brill v City of New York, supra at 652; see Perini Corp. v City of New York (Department of Envtl. Protection), 16 AD3d 37, 39 [1st Dept 2005]; Thompson v New York City Bd. of Educ., 10 AD3d 650, 651 [2d Dept 2004])." Here, Defendant did not, as required, seek leave of Court prior to filing its late motion, nor did it offer any "good cause" for the delay (see CPLR 3212[a]).
There is no question that the motion was made well beyond the 45-day period the Court imposed and, indeed, the 120-day statutory period following filing of the Note of Issue and Certificate of Readiness. Defendant offers no excuse for its failure to comply with the Court-imposed deadline, or even the CPLR 3212(a) statutory time period. Defendant's Motion is denied on the basis it is untimely, without addressing the merit of the motion.
November 29, 2021
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Defendant's Motion for summary judgment:
Notice of Motion, Affirmation in Support,
and Exhibits attached 1
Affirmation in Opposition 2
Filed Papers: Claim, Answer
1. Brill v City of New York (2 NY3d 648 )