Crawford v. Liz Claiborne, Inc.

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered September 20, 2006, which granted defendants’ motion for summary judgment dismissing the complaint, reversed, on the law and the facts, without costs, the motion denied, the complaint reinstated, and the matter remanded for further proceedings before a different Justice. Plaintiff commenced this action to recover damages against defendants, claiming that they discriminated against him on the basis of his sexual orientation. A note of issue was filed by plaintiff on May 15, 2006,1 and motions for summary judgment, [285] if any, were to be made within 60 days, i.e., by July 14. The directive requiring summary judgment motions to be made within 60 days after the filing of the note of issue was issued in a preliminary conference order, which referenced the local rule of the Supreme Court, New York County.2 Defendants’ motion for summary judgment dismissing the complaint was made when it was served on July 19. Defendants’ counsel asserted that the motion was made after the deadline because counsel had erroneously believed that she had 120 rather than 60 days to make the motion. Supreme Court, accepting counsel’s excuse, considered the merits of the motion and granted it. The merits of an untimely motion for summary judgment may be considered by the court only if the movant demonstrates “good cause for the delay in making the motion—a satisfactory explanation for the untimeliness” (Brill v City of New York, 2 NY3d 648, 652 [2004]). Notwithstanding the hoary maxim ignorantia juris non excusat, defendants claim that their failure to appreciate that the motion was due within 60 days is a satisfactory explanation. We disagree. Defendants’ explanation for the delay is no more satisfactory than a perfunctory claim of law office failure, an excuse that is insufficient to constitute good cause under CPLR 3212 (a) (see Breiding v Giladi, 15 AD3d 435 [2005]; Connors, CPLR 3212[a]’s Timing Requirement for Summary Judgment Motions, 71 Brook L Rev 1529, 1557-1558 [Summer 2006]; see also Greenfield v Gluck, 2003 NY Slip Op 50729[U] [App Term, 2d & 11th Jud Dists 2003]; cf. Leader v Maroney, Ponzini & Spencer, 276 AD2d 194, 200 [2000], affd 97 NY2d 95 [2001] [counsel’s [286] erroneous belief that original version of CPLR 306-b applied to action did not constitute good cause to extend time for service under amended version of CPLR 306-b]). Notably, the local rules of Supreme Court, New York County and the rules of the individual justices of that county are available, among other places, on line (http://www.nycourts.gov/supctmanh/UNIFRLrev. 2007.507.pdf [last updated Feb. 28, 2006; accessed Oct. 18, 2007]). That the motion was only a few days late does not eliminate the requirement that good cause be demonstrated (see Milano v George, 17 AD3d 644 [2005]), and we are not free, for the sake of judicial economy, to consider an untimely summary judgment motion in the absence of a showing of good cause (see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]; Brill, supra; Perini Corp. v City of New York [Department of Envtl. Protection], 16 AD3d 37 [2005]). The dissent’s contention that the “preliminary conference order does not appear to comply with CPLR 3212” and is not enforceable, and that defendants therefore had 120 days (as opposed to 60) following the filing of the note of issue to move for summary judgment, was not raised by defendants. To the contrary, defendants tacitly concede that the 60-day period applies but contend that the directive in the preliminary conference order requiring that all motions for summary judgment be made within that period was ambiguous. This purported ambiguity, the argument goes, constitutes good cause for the belated motion. Since it is undisputed that the parties had 60 days to move for summary judgment following the filing of the note of issue, the dissent’s unclear discussion on the issue of the timeliness of defendants’ motion for summary judgment is inapposite.3 Moreover, the dissent’s reliance on Vila v Cablevision of NYC (28 AD3d 248 [2006]) is misplaced. The Court in Vila found that good cause existed because a so-ordered stipulation between the parties was ambiguous and did not clearly set forth the deadline for making summary judgment motions. Here, no ambiguity existed regarding the amount of time the parties had to move for summary judgment following the filing of the note of issue; defendants simply failed to learn the requirement of [287] the expressly referenced local rule. Therefore, ignorance of the applicable rule, not an ambiguity in the preliminary conference order, explains defendants’ failure to make a timely motion (see Sutton v Lavezzo, 160 AD2d 292, 293 [1990] [counsel’s ignorance of rules of IAS part insufficient to excuse his failure to appear at calendar call]). For similar reasons, the dissent’s reliance on Cooper v Hodge (13 AD3d 1111 [2004] [mutual mistake regarding whether trial court extended time to make summary judgment motions]) and Stimson v E.M. Cahill Co., Inc. (8 AD3d 1004 [2004] [family emergencies of lawyer and his secretary requiring both of them to be out of the office on last day on which to serve summary judgment motion]) is misplaced. At bottom, the principal issue on this appeal is whether good cause existed to allow Supreme Court to consider a summary judgment motion that was untimely. In accord with the precedent that we are required to follow, we conclude that good cause was lacking in this case. In so holding, we certainly do not “take[ ] away the discretionary power of [a] trial court to excuse a de minimis delay in [making a] summary judgment motion”; rather, we find that the de minimis delay in this case was not satisfactorily explained (Brill, 2 NY3d at 652 [“ ‘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” (emphasis added)]; see Milano, 17 AD3d at 645 [summary judgment motion made one day past deadline needed to be supported by good cause for the delay]). Although we have every confidence that the IAS court would preside fairly and impartially over the matter upon remand, plaintiff raises a reasonable concern about the appearance of impartiality, and we accordingly direct that this matter be reassigned to another Justice. In so doing, contrary to the unfortunate statements by the dissent, we neither “reproach” nor “impugn[ ] the court’s impartiality”; nor, of course, does our mere disagreement with the IAS court’s decision to consider the merits of the motion play any role in that direction. Finally, contrary to the dissent, our concern about the appearance of impartiality is not founded upon Supreme Court having decided a dispositive motion adversely to plaintiff. Concur—McGuire, Malone and Kavanagh, JJ. Footnotes [1] “[P]apers that are required to be filed are considered to have been filed when they are received by the office with which . . . they are to be filed” (Coty v County of Clinton, 42 AD3d 612, 613-614 [2007] [emphasis added], quoting Castro v Homsun Corp., 34 AD3d 616, 617 [2006]). The date-stamped note of issue was marked “received” on May 15 in the Trial Support Office of the New York County Clerk’s Office. While a date-stamped copy of the note of issue was not in the record on appeal, we may refer to the contents of the Supreme Court file and take judicial notice that the note of issue was received on May 15 (see McClelland v Palmer, 186 AD2d 1079, 1080 [1992] [court took judicial notice that a stipulation discontinuing an action was filed in the Niagara County Clerk’s Office]; Lobotsky v Lobotsky, 103 AD2d 799 [1984] [court took judicial notice of filing dates of papers in divorce action filed with Westchester County Clerk’s Office]; see also Graffeo v Brenes, 85 AD2d 656, 657 [1981]; Prince, Richardson on Evidence § 2-209 [Farrell 11th ed]). The dissent apparently means to criticize our taking of judicial notice of the filing date of a paper in the court file by referring to it as a “sua sponte enlargement of the record.” Of course, the record is “enlarged” whenever a court takes judicial notice of a fact. [2] On the date the preliminary conference order was executed by Justice Solomon, April 11, 2005, the local rules of Supreme Court, New York County required a motion for summary judgment to be made within 60 days of the filing of the note of issue (NY County Sup Ct, Civ Branch, Uniform Rules of Justices, http://www.courts.state.ny.us/supctmanh/uniform_rules.htm [eff July 3, 2001] [last updated June 16, 2005; accessed Oct. 18, 2007] [rule 17 “Motions for Summary Judgment . . . Unless specified otherwise in a particular case, pursuant to CPLR 3212 (a) all motions for summary judgment must be made no later than 60 days after the filing of the note of issue”]). Rule 17 was subsequently modified to provide a 120-day period to move for summary judgment unless the court directed otherwise (NY County Sup Ct, Civ Branch, Uniform Rules of Justices, http://www.nycourts.gov/supctmanh/ UNIFRLrev.2007.507.pdf [effective April 17, 2006] [last updated Feb. 28, 2006; accessed Oct. 18, 2007]). Pursuant to her own part rule, which went into effect at the same time the local rule was modified, Justice Solomon required summary judgment motions to be made within 60 days of the filing of the note of issue (id. [“Absent court order, post note of issue dispositive motions shall be (made) within 60 days”]). Accordingly, at all times motions for summary judgment in this case were due within 60 days of the filing of the note of issue. [3] The dissent seems to be of the view that the printed preliminary conference order was so vague and the local rule so obscure that defendants had insufficient notice that they were required to make any summary judgment motion within 60 days of the filing of the note of issue. Indeed, the dissent goes so far as to state that “[penalizing defendants for violation of a rule of which they had no notice raises due process concerns.” This statement ignores the undisputed fact that the preliminary conference order expressly stated that dispositive motions were to be made “on or before per local rule,” and thus defendants were obligated to find out what the local rules required.