Opinion
Index No. 516807/2019
06-21-2024
Aaron Codrington, Plaintiff, v. Metropolitan Transportation Authority and NEW YORK CITY TRANSIT AUTHORITY, Defendants.
Unpublished Opinion
HON. AARON D. MASLOW JUSTICE OF THE SUPREME COURT OF THE STATE OF NEW YORK
The following numbered papers were used on this motion: NYSCEF Document Numbers 57-68, 70-73, 74-80.
It is hereby ORDERED as follows:
The Court recalls its initial determination that the within motion be denied without prejudice to refiling.
The within motion by Defendants seeking an order pursuant to CPLR 3212, (1) granting summary judgment to Defendants and dismissing Plaintiff's Labor Law § 200 and common law negligence claims, (2) granting summary judgment to Defendants and dismissing Plaintiff's Labor Law § 240 (1) claim, and (3) granting summary judgment to Defendants and dismissing Plaintiff's complaint as to Plaintiff's Labor Law § 241 (6) claims predicated on violations of Industrial Code §§ 23-1.5, 23-1.7, 23-3.1, 23-2.5, 23-2.6, 23-6.1, 3.2, and 3.3, is ADJOURNED to August 15, 2024.
There was a failure to comply with IAS Part 2 Rules, Part II (Motions & Special Proceedings), Subpart B (Papers), § 3 (Hardcopies), which provides in pertinent part:
Where a party's papers filed on NYSCEF in support of or in opposition to a motion cumulatively exceed 75 pages (including, but not limited to, notice of motion, affirmation, affidavits, exhibits, transcripts, prior orders, photographs, memorandum of law, and reply papers), the party shall submit to the Court a printed copy of its papers (hardcopies), along with a contents list. This Rule applies to all parties. The purpose for this is to facilitate review in advance by the Court (see Ramzy v Safdi Plaza Realty Inc., 80 Misc.3d 1236 [A], 2023 NY Slip Op 51175[U] [Sup Ct, Kings County 2023]). The deadline for its receipt shall be nine days prior to the date on which the motion is calendared unless by law the deadline for filing same is after said deadline, in which event the deadline shall be the day the papers are filed on NYSCEF. Hardcopy submissions may be mailed to the Court - to Hon. Aaron D. Maslow, Justice of the Supreme Court, 320 Jay Street, Courtroom 18.36, Brooklyn, NY 11201. In-person submissions may be brought to the courtroom so long as you have confirmed with the Part Clerk by email that she will be available to accept them.
The foregoing quoted provision of IAS Part 2 Rules is an updated version of a previous rule in effect prior to June 3, 2024. The prior version, contained within then Part I (Motions & Special Proceedings), Subpart B (Papers), § 3 (Hardcopies), provided:
For motions where the papers are filed on NYSCEF, hardcopies of a party's papers shall be submitted in the event that the party's papers exceed 75 pages. This hardcopy submission - which shall include a contents list - shall be made at least nine calendar days prior to the date on which the motion is calendared, in order to facilitate review in advance by the Court.
Defendants' papers on this motion consumed 627 pages. Plaintiff's papers consumed 402 pages.
Hardcopy submissions were not provided at least nine days prior to, when this motion was scheduled to be heard. While a FedEx packing slip reveals that a set of papers was sent on June 19, 2024, this occurred too late for the papers to be reviewed.
The purpose and support for the hardcopy rule in IAS Part 2 was explained in Ramzy v Safdi Plaza Realty Inc., 80 Misc.3d 1236 [A], 2023 NY Slip Op 51175[U], *2-5 [Sup Ct, Kings County 2023]):
" '[T]he court may refuse to consider improperly submitted papers'" (Loeb v Tanenbaum, 124 A.D.2d 941, 942 [3d Dept 1986], quoted in Biscone v JetBlue Airways Corp., 103 A.D.3d 158, 178 [2d Dept 2012]; see Sheedy v Pataki, 236 A.D.2d 92, 97-98 [3d Dept 1997] ["Supreme Court properly required plaintiffs to submit to it all papers that were to be considered on the instant motion."]). 5
A few minutes of research turns up dozens of reported instances in New York case law where parties did not adhere to court rules requiring the submission of hardcopies of papers. In Albany County, Justice Paul J. Baisley Jr. denied a motion without prejudice due to "defendant having failed to submit a full set of motion papers marked as 'working copies'" (Webb v Muller, 2016 WL 11721052, *1 [Sup Ct, Albany County 2016]). Justice Joseph Capella, of Bronx County, similarly denied a motion without prejudice for this reason (see Marc v Ray Catena Infiniti, Inc., 2018 WL 11278746 [Sup Ct, Bronx County 2018]). In a Suffolk County case, "the motion by the defendant Intelex USA, LLC for an order compelling discovery is denied without prejudice as the defendant failed to submit working copies of the motion papers filed electronically as required by the Rules of this Part" (Bruno v Intelex USA, LLC, 2019 WL 12337852, *1 [Sup Ct, Suffolk County 2019]). Noting that "Part 14 rules require a party who has participated in e-filing to submit working copies to the court," and that, while a working copy had been provided by the moving plaintiff, it was not accompanied by a confirmation notice 6, the court in Lopez v Lopera (2012 WL 9337612, *1 [Sup Ct, Queens County 2012]) denied the motion "with leave to renew upon compliance with same" (id.). 7
While we live in a technology-dominated world, the need for paper documents has never been completely excised. This case and the complexity of its litigation - allegations of liability under Labor Law §§ 240, 241, and 200, and common law negligence, with concomitant evidentiary issues resulting from the death of Decedent, who left an affidavit which is contested by Defendants, who claim that Decedent lacked capacity to execute it - clearly demonstrate this need. 8 There is a unique importance to each case and concern brought before a judge, and this weightiness manifests itself in a judge's ethical imperative to fully consider whether the parties' papers substantiate their claims or defenses. To fulfill this duty to the best of its ability, this Court holds steadfast to the requirement in its IAS Part 2 rules: "For motions where the papers are filed on NYSCEF, hardcopies of a party's papers shall be submitted in the event that the party's papers exceed 75 pages. This hardcopy submission - which shall include a contents list - shall be made at least nine calendar days prior to the date on which the motion is calendared, in order to facilitate review in advance by the Court." (New York State Unified Court System, 2nd JD - Civil Term, Kings Supreme Court, Hon. Aaron D. Maslow: Part 2 Rules, rule I [B] [3], https://ww2.nycourts.gov/courts/2jd/kings/civil/MaslowRules.shtml [last accessed Nov. 6, 2023].)
There is ample support for such a rule in the Uniform Rules for the New York State Trial Courts and jurisprudence. The Uniform Civil Rules for Supreme and County Courts provide that "The court may require the parties to provide working copies of documents filed electronically" (22 NYCRR 202.5-b[d] [5]). This rule was cited in the court decisions mentioned above (supra at 5). 9 Inherent in this provision is the recognition that some documents are "impractical or inconvenient to file electronically" (22 NYCRR 202.5-b[d] [7] 10). In the case at hand, Plaintiff's total submitted pages number around 1,200, and several individual documents exceed 100 pages each (see NYSCEF Doc No. 246, Plaintiff EBT Transcript [234 pages]; NYSCEF Doc No. 230, Bill of Particulars [208 pages]; NYSCEF Doc No. 233, Plaintiff's Response to Discovery Demands [169 pages]; NYSCEF Doc No. 247, MJM Assoc. Constr., Inc.'s EBT Transcript [134 pages]; NYSCEF Doc No. 248, MJM Assoc. Constr., Inc.'s EBT Exhibits [127 pages]; NYSCEF Doc No. 249, Hanaa Ramzy's EBT Transcript [108 pages]). Without hardcopies, this court would be relegated to processing and combing through these lengthy documents electronically, which is surely "impractical[,] inconvenient[,]" (id.) and overly burdensome.
Review of motions in advance is a practice of this court (see Matter of Court's Discharge of Its Responsibilities Pursuant to 22 NYCRR § 100.3 (D) (2), (3), - Misc.3d -, 2023 NY Slip Op 23258, *1 [Sup Ct, Kings County 2023]), as is enables full consideration and deliberation which each motion deserves. It is this routine which impelled this court's hardcopy submission rule. As the length of the motion papers filed by a party increases, the sheer amount of pages involved makes the requisite reading and deliberation an increasingly daunting task. When the number of pages reaches 75, hardcopy submission becomes an expediency. As the number of pages to review increases by the hundreds, it becomes an imperative. When a submission is over 1,000 pages, a party has a conscientious duty to the court to offer chambers a hardcopy even in the absence of a rule requiring same; it is only common sense. The presence of paper documents facilitates more comprehensive review by allowing this Court to physically annotate important points on paper, to compare papers side-by-side for opposing arguments, to more easily locate cited decisions, and to reap other benefits of reading tangible, actual documents as opposed to staring at a computer screen.
While this Court's chambers could conceivably print the motion submissions, this undertaking would deplete copy paper, toner cartridges, and time, all at taxpayer expense, which would contravene public policy. The time it takes to perform this routine would be better spent on reading other motions. It therefore becomes incumbent on parties to a motion to provide these documents in paper format in addition to the NYSCEF electronic filings when the Part Rules call for it. The value of advance preparation which informs this obligation also informs the second component of the rule, namely that hardcopies be provided at least nine days prior to the scheduled motion date. As lengthy motions typically demand higher levels of preparation, a party's provision of hardcopies at least nine days before the calendar date enhances this Court's ability to perform its responsibilities.
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5. Even if a court relies on electronically filed documents, it possesses the discretion to not consider a document whose location is not adequately described (see Reardon v Macy's, Inc., 191 A.D.3d 712 [2d Dept 2021]; Eastern Funding LLC v San Jose 63 Corp., 172 A.D.3d 818 [2d Dept 2019]), evidencing that procedural requirements are more than mere trivial niceties; accord Garrison v Quirk, 120 A.D.3d 753 [2d Dept 2014] [even if readable CD-R previously submitted to court in connection with earlier motion, absent rule providing otherwise, court should not be compelled to locate previously submitted documents in electronic record in considering subsequent motions]).
6. This Court presently does not require the confirmation notice.
7. This Court's research on Westlaw identified at least 49 other decisions from Supreme Court, Suffolk County, in which the hardcopy rule was enforced, the latest one being Mills v Reyes (2021 WL 6113975 [Sup Ct, Suffolk County 2021]).
8. Ten issues are listed in Defendants' counsel's affirmation, as quoted supra at 2-3. The same counsel stated that Plaintiff is claiming violations of at least 40 provisions of the Industrial Code (see NYSCEF Doc No. 226, Affirmation in Support of Motion ¶ 8).
9. This rule within the Uniform Civil Rules for the Supreme Court and the County Court (22 NYCRR Part 202) now appears in paragraph (5) of subdivision (d) of § 202.5-b; it previously was set forth in paragraph (4) of said subdivision.
10. While this provision does not relate specifically to lengthy exhibits and documents, it evidences a realization that not every document lends itself to consideration and review in electronic format. The current efiling system enables parties to officially submit their papers in electronic format as PDFs while permitting judges to maintain the option of requiring hardcopies. While this Court could require working copies in hardcopy format for every motion, it elected not to require such unless the number of pages is in excess of 75. Even then, this Court has not enforced this rule until now, when it was presented with a combination of 1,301 pages in a complex Labor Law case where the injured employee later died, presenting a Noseworthy v City of New York (298 NY 76 [1948]) issue.
In Ramzy, a total of 1,191 pages were filed electronically onto NYSCEF. The Court pointed out the difficulties in reviewing that quantity of pages on a computer screen. The alternative is to burn out government printers so as to facilitate conscientious review of the submissions. Here, the total pages submitted by both sides was 1,029. Certainly one cannot expect the Court to review 1,029 pages submitted with respect to a motion for summary judgment in an action alleging violations of the Labor Law worksite requirements - either on a computer screen or in hardcopy format provided on the eve of oral argument.
Accordingly, the Court exercises its discretion to administratively adjourn the instant motion and to require both sides to submit hardcopies of their papers in accordance with the current IAS Part 2 Rules.