Opinion
200.1 CA 14-01354
05-08-2015
Ainsworth M. BENNETT, Individually and on Behalf of the Estate of Virginia R. Bennett, Deceased, Plaintiff–Appellant, v. ST. JOHN'S HOME and St. John's Health Care Corporation, Defendants–Respondents. (Appeal No. 2.).
David E. Woodin, LLC, Catskill (David E. Woodin of Counsel), for Plaintiff–Appellant. Underberg & Kessler LLP, Rochester (Margaret E. Somerset of Counsel), for Defendants–Respondents. Andrew B. Strickland, Washington, DC, for AARP Foundation Litigation, Long Term Care Community Coalition, MFY Legal Services, Inc. and Disability Rights New York, Amicus Curiae.
David E. Woodin, LLC, Catskill (David E. Woodin of Counsel), for Plaintiff–Appellant.
Underberg & Kessler LLP, Rochester (Margaret E. Somerset of Counsel), for Defendants–Respondents.
Andrew B. Strickland, Washington, DC, for AARP Foundation Litigation, Long Term Care Community Coalition, MFY Legal Services, Inc. and Disability Rights New York, Amicus Curiae.
PRESENT: PERADOTTO, J.P., CARNI, SCONIERS, and WHALEN, JJ.
Opinion
MEMORANDUM: Plaintiff, individually and as the administrator of the estate of his wife, Virginia R. Bennett (decedent), commenced this action pursuant to Public Health Law § 2801–d, alleging that decedent was deprived of certain rights and benefits derived from federal and state regulations while she was a patient in a nursing home operated by defendants. Supreme Court granted defendants' motion for summary judgment dismissing the complaint, and plaintiff appeals.
Plaintiff contends that the motion should have been denied as untimely because it was made more than 120 days after the filing of the note of issue without a showing of good cause for the delay (see generally CPLR 3212[a] ; Brill v. City of New York, 2 N.Y.3d 648, 652, 781 N.Y.S.2d 261, 814 N.E.2d 431 ). Plaintiff waived that contention, however, by expressly consenting to the timing of the motion before it was made (see Stephen v. Brooklyn Pub. Lib., 120 A.D.3d 1221, 1221, 992 N.Y.S.2d 101 ; see generally Hadden v. Consolidated Edison Co. of N.Y., 45 N.Y.2d 466, 469, 410 N.Y.S.2d 274, 382 N.E.2d 1136 ).
While we agree with our dissenting colleague that the court was not required to accept the express stipulation of the parties to extend the 120–day deadline in CPLR 3212, we note that the court in fact did so in advance of the motion (cf. Coty v. County of Clinton, 42 A.D.3d 612, 614, 839 N.Y.S.2d 825 ). Moreover, unlike our dissenting colleague, we do not view the timing requirements applicable to motions for summary judgment as a matter of public policy that may not be affirmatively waived by a party (see Mitchell v. New York Hosp., 61 N.Y.2d 208, 214, 473 N.Y.S.2d 148, 461 N.E.2d 285 ).
With respect to the merits, we conclude that defendants established as a matter of law that they provided appropriate care and treatment to decedent and did not violate any of the various federal and state regulations identified by plaintiff as the bases for this action, and plaintiff failed to raise a triable issue of fact in opposition (see Gold v. Park Ave. Extended Care Ctr. Corp., 90 A.D.3d 833, 834, 935 N.Y.S.2d 597 ; see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ).
It is hereby ORDERED that the order and judgment so appealed from is affirmed without costs.
All concur except WHALEN, J., who dissents and votes to reverse.
MEMORANDUM:
I respectfully dissent because I disagree with the majority's conclusion that plaintiff waived his contention that defendants' motion for summary judgment should have been denied as untimely. I would therefore reverse the order and judgment, deny defendants' motion, and reinstate the complaint.
Where, as here, Supreme Court does not schedule a deadline for filing motions for summary judgment, “such motion shall be made no later than one hundred and twenty days after the filing of the note of issue, except with leave of court on good cause shown” (CPLR 3212[a] ; see O'Brien v. Bainbridge, 109 A.D.3d 1206, 1208, 971 N.Y.S.2d 780 ; Jones v. Town of Le Ray, 28 A.D.3d 1177, 1178, 813 N.Y.S.2d 686 ). The moving party has the burden of demonstrating good cause, and “[n]o excuse at all, or a perfunctory excuse, cannot be ‘good cause’ ” (Brill v. City of New York, 2 N.Y.3d 648, 652, 781 N.Y.S.2d 261, 814 N.E.2d 431 ; see LoGrasso v. Myer, 16 A.D.3d 1089, 1089–1090, 790 N.Y.S.2d 919 ). In that context, 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, 2 N.Y.3d at 652, 781 N.Y.S.2d 261, 814 N.E.2d 431 ; see O'Brien, 109 A.D.3d at 1208, 971 N.Y.S.2d 780 ).
The Court of Appeals has explained that requiring the movant to show good cause serves “the purpose of the amendment, [i.e.,] to end the practice of eleventh-hour summary judgment motions” (Brill, 2 N.Y.3d at 652, 781 N.Y.S.2d 261, 814 N.E.2d 431 ), and that “statutory 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 Mut. Auto. Ins. Co., 3 N.Y.3d 725, 726–727, 786 N.Y.S.2d 379, 819 N.E.2d 995 ).
Here, the court did not set a deadline for motions, and the note of issue was filed on April 20, 2012, which meant that all summary judgment motions were to be filed within 120 days and no later than August 18, 2012 (see CPLR 3212 [a] ). The motion for summary judgment was not filed until June 28, 2013, which is just over 10 months beyond the 120–day limit (see O'Brien, 109 A.D.3d at 1208, 971 N.Y.S.2d 780 ). Defendants' moving papers did not include any explanation for the delay, and the reason set forth by the court during proceedings on May 13, 2013 was simply that defendants may have a meritorious motion and, thus, that determining the motion might simplify the issues at trial, which is the same excuse that was rejected by the Court of Appeals in Miceli and Brill (see Miceli, 3 N.Y.3d at 727, 786 N.Y.S.2d 379, 819 N.E.2d 995 ; Brill, 2 N.Y.3d at 652–653, 781 N.Y.S.2d 261, 814 N.E.2d 431 ). I therefore conclude that the motion should not have been entertained by the court.
In my view, the fact that the parties entered a stipulation to allow defendants to make a late motion for summary judgment does not alter the above analysis inasmuch as “[the] parties' stipulation is insufficient to excuse [a] delay” (Coty v. County of Clinton, 42 A.D.3d 612, 614, 839 N.Y.S.2d 825 ). “Unless public policy is violated, the parties are free to chart their own procedural course, and may fashion the basis upon which a particular controversy will be resolved” (Loretto–Utica Props. Corp. v. Douglas Co., 226 A.D.2d 1058, 1059, 642 N.Y.S.2d 117 [internal quotation marks omitted]; see Mitchell v. New York Hosp., 61 N.Y.2d 208, 214, 473 N.Y.S.2d 148, 461 N.E.2d 285 ). However, as articulated by the legislature and the Court of Appeals, it is public policy to strictly enforce the 120–day limit for summary judgment motions in the absence of leave of court on good cause shown. CPLR 3212(a) was amended by the legislature with “the purpose ... to end the practice of eleventh-hour summary judgment motions” (Brill, 2 N.Y.3d at 652, 781 N.Y.S.2d 261, 814 N.E.2d 431 ), which the Court of Appeals described as a “sloppy practice threatening the integrity of our judicial system” (id. at 653, 781 N.Y.S.2d 261, 814 N.E.2d 431 ). “[T]he Court of Appeals [has] clearly indicated that the 120–day statutory time frame contained in CPLR 3212(a) is a strict requirement ‘to be taken seriously by the parties' ” (Coty, 42 A.D.3d at 614, 839 N.Y.S.2d 825, quoting Miceli, 3 N.Y.3d at 726, 786 N.Y.S.2d 379, 819 N.E.2d 995 ) and “must be ‘applied as written and intended’ ” (id., quoting Brill, 2 N.Y.3d at 653, 781 N.Y.S.2d 261, 814 N.E.2d 431 ). Although parties may stipulate away some statutory rights (see Mitchell, 61 N.Y.2d at 214, 473 N.Y.S.2d 148, 461 N.E.2d 285 ), under CPLR 3212(a) and the decisions of the Court of Appeals in Brill and Miceli, “the court has the exclusive authority to extend the statutory deadline; mutual agreement of the parties without court approval will not suffice” (Coty, 42 A.D.3d at 614, 839 N.Y.S.2d 825 ), and the court may not approve of the delayed motion without a showing of good cause (see CPLR 3212 [a] ; Brill, 2 N.Y.3d at 652, 781 N.Y.S.2d 261, 814 N.E.2d 431 ). Thus, contrary to the majority's position, litigants cannot waive the statutory requirement that good cause be shown in order to permit the late filing of a motion pursuant to CPLR 3212, and the statute does not permit courts to accept a stipulation of the parties “in advance of the motion” where there is no showing of good cause. I therefore conclude that, while a court may accept a late motion for summary judgment “pursuant to both a stipulation and the court's own order, upon a showing of ‘good cause’ ” (Jim Beam Brands Co. v. Tequila Cuervo La Rojena, S.A. De C.V., 85 A.D.3d 556, 556–557, 924 N.Y.S.2d 793 [emphasis added] ), a stipulation alone is not sufficient to extend the deadline imposed by the statute (see Coty, 42 A.D.3d at 614, 839 N.Y.S.2d 825 ).
As discussed above, the parties' stipulation in the present case was accompanied by acquiescence of the court, but without any showing of good cause for the delay. In my view, “[i]f this practice is tolerated and condoned, the ameliorative statute is, for all intents and purposes, obliterated” (Brill, 2 N.Y.3d at 653, 781 N.Y.S.2d 261, 814 N.E.2d 431 ). The courts should heed the admonition of the Court of Appeals and not countenance such statutory violations (see id. ).