Opinion
01-15-2015
BRYAN L. SALAMONE, P.C., Appellant, v. Giacomino DIGIACOMO, Respondent.
Smith Carroad Levy & Wan, P.C., Commack (Timothy Wan of counsel), for appellant.
Smith Carroad Levy & Wan, P.C., Commack (Timothy Wan of counsel), for appellant.
PRESENT: MARANO, J.P., TOLBERT and GARGUILO, JJ.
Opinion Appeal from an order of the District Court of Suffolk County, Fourth District (Janine A. Barbera–Dalli, J.), dated July 1, 2013. The order denied plaintiff's motion for summary judgment as untimely. ORDERED that the order is reversed, without costs, and the matter is remitted to the District Court for a determination of plaintiff's motion for summary judgment on the merits.
Plaintiff commenced this action in July of 2012 to recover the sum of $3,912.35, representing attorney's fees owed pursuant to a written retainer agreement. After issue was joined, the matter was transferred to the arbitration calendar (see Rules of the Chief Judge [22 NYCRR] § 28.2[b] ) in September of 2012. (The record is silent as to whether the matter was ever arbitrated.) In June of 2013, plaintiff moved for summary judgment. By order dated July 1, 2013, the District Court denied plaintiff's motion as untimely, on the ground that the motion had been made more than 240 days after the matter had been “transferred to the arbitration.”
The District Court erred in finding that plaintiff's time to make the motion for summary judgment commenced upon the matter being “transferred to the arbitration calendar,” since there is no such provision which governs the timeliness of a motion for summary judgment (see CPLR 3212[a] ; UDCA 1001, 1301 ; see also Uniform Rules for the District Courts [22 NYCRR] § 212.10 ). Inasmuch as no notice of trial, the District Court equivalent of a note of issue (see Chimbay v. Palma, 14 Misc.3d 130[A], 2007 N.Y. Slip Op. 50019[U], 2007 WL 29059 [App.Term, 2d & 11th Jud.Dists.2006] ), or certificate of readiness for trial had been filed (see e.g. Vinueza v. Tarar, 100 A.D.3d 742, 954 N.Y.S.2d 160 [2012] ; Farrington v. Heidkamp, 26 A.D.3d 459, 809 N.Y.S.2d 458 [2006] ; cf. Arbay v. Sunoco, Inc., 31 Misc.3d 148[A], 2011 N.Y. Slip Op. 50977[U], 2011 WL 2163525 [App.Term, 9th & 10th Jud.Dists.2011] ), and there is no indication that the court clerk had fixed a date for trial (see UDCA 1301 ), plaintiff's time to make its motion for summary judgment had not commenced. As the District Court did not reach the merits of plaintiff's motion for summary judgment, the matter is remitted to the District Court for a determination with respect thereto.
Accordingly, the order is reversed and the matter is remitted to the District Court for a determination of plaintiff's motion for summary judgment on the merits.