Opinion
12485/04.
Decided January 14, 2008.
Plaintiff Attorney: Shapiro Beilly Rsenberg.
Defense Attorney: James G. Bilello Associates.
Baker, McEvoy, Morrissey Mos.
The plaintiff, Norma Fequiere, (plaintiff) moves to recover damages for personal injuries in a motor vehicle accident, defendants Cheryl A. Morrison (Morrison) and Mark Tony Nicholas (Nicholas) move, pursuant to CPLR 2221, for leave to reargue their prior motion for summary judgment in their favor on the issue of liability, and, in the event that such leave to reargue is granted, for an order granting them summary judgment dismissing plaintiff's complaint as against them.
This action arises out of a motor vehicle accident, which occurred on September 8, 2003 on Ralph Avenue at or near its intersection with Clarendon Road, in Brooklyn, New York. Plaintiff was a passenger in a vehicle driven by defendant Angel Ortiz which was involved in the collision with a vehicle owned by Morrison and operated by Nicholas.
Plaintiff filed the note of issue in this action on December 1, 2006. Morrison and Nicholas assert that plaintiff's note of issue was received by them on December 8, 2006 (seven days later). Pursuant to CPLR 2211, a motion is made when the notice of motion is served. Morrison and Nicholas assert that their notice of motion for summary judgment was served on plaintiff on February 13, 2007. The records of the Kings County Clerk's Office reflect that Morrison and Nicholas' motion for summary judgment was filed on February 16, 2007.
CPLR 3212 (a) provides that the court may set a date after which no summary judgment may be made as long as it is no earlier than 30 days after the filing of the note of issue. In accordance with this statute, Kings County Supreme Court Uniform Civil Term Rule 13, in pertinent part, provides:
"13. Post Note of Issue Summary Judgment Motions: . . . No motion for summary judgment may be made more than 60 days after filing a Note of Issue in all . . . cases [other than where the defendant is the City of New York], except with leave of the Court on good cause shown. See, CPLR3212 (a)"(emphasis added).
By order dated May 18, 2007 and filed on May 22, 2007, this court denied Morrison and Nicholas' motion for summary judgment based upon the ground that pursuant to Kings County Supreme Court Uniform Civil Term Rule 13, it was untimely and no good cause was shown by Morrison and Nicholas to warrant leave of the court to entertain their tardy motion. Morrison and Nicholas now seek leave to reargue their motion.
The purpose of a motion for reargument is to afford a party an opportunity to demonstrate that the court overlooked or misrepresented the law or facts pertinent to the original motion ( see CPLR2221 [d][2]; Andrea v du Pont de Nemours Co., 289 AD2d 1039, 1040-1041; Foley v Roche, 68 AD2d 558, 567; American Trading Co. v Fish, 87 Misc 2d 193, 195). "Its purpose is not to serve as a vehicle to permit the unsuccessful party to reargue once again the very questions previously decided" ( Foley, 68 AD2d at 567; see also William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27; Bankers Trust Co. of Cal. v Payne, 188 Misc 2d 726, 729; Ulster Sav. Bank v Goldman, 183 Misc 2d 893, 894; American Trading Co., 87 Misc 2d at 195).
In support of their motion, Morrison and Nicholas now argue that although plaintiff's note of issue was filed on December 1, 2006, the fact that they did not receive the note of issue until December 8, 2006 constitutes good cause for their late service of their summary judgment motion. It is true that a note of issue must be served on the other parties as well as being filed. Pursuant to CPLR 3402 (a), for purposes of placing a case on the trial calendar, a note of issue is filed "within ten days after service, with proof of such service." Thus, "CPLR 3402 . . . assumes that service of the note of issue will precede its filing" (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3212:12, 2007 Pocket Part, at 2).
The Appellate Division, First Department, therefore, held, in McFadden v 530 Fifth Ave. RPS III Assoc., LP (28 AD3d 202, 203), that "[w]hile CPLR 3212 (a) and the applicable local rule specify the date of filing of the note of issue as the triggering date for the time within which to bring a summary judgment motion, and do not mention service of the note of issue, an opponent's failure to serve a note of issue constitutes good cause for a late summary judgment motion." It reasoned that "[a] contrary rule would permit a party to unilaterally shorten an opponent's time to make a summary judgment motion" ( id.).
In Alexandridis v Suede Night Club ( 17 Misc 3d 1104 [A], 2007 NY Slip Op 51823[U], *2 [2007]), the Supreme Court, New York County, broadly construed the decision in McFadden ( 28 AD3d at 203) as a holding by the Appellate Division, First Department, that "it is not the date of filing of the note of issue which starts the clock running on the time to serve the dispositive motion, but the date of service of the note of issue upon the parties to the action." However, in both McFadden ( 28 AD3d at 202-203) and Alexandridis (2007 NY Slip Op 51823 [U], *3), unlike in the case at bar, there was no proof that the note of issue had ever been served upon the defendants. In the case at bar, there was no failure to serve the note of issue, which was the circumstance that had constituted good cause for extending the CPLR 3212 (a) time in those cases. The note of issue was merely received seven days after its filing.
It has been observed that generally, "good practice is to send [the note of issue] off together, for service and filing, in one batch of envelopes" (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3402:2, at 16). In this regard, the Appellate Division Third Department, in Coty v County of Clinton ( 42 AD3d 612 , 613-614), recently has determined that where the note of issue is served by mail, CPLR 2103 (b) (2) does not operate to extend the deadline for moving for summary judgment by five days since CPLR 2103 (b) (2) applies solely when the period of time prescribed by law is measured by the service of a paper.
The Appellate Division, Third Department, in Coty ( 42 AD3d at 613), held that "CPLR 3212 (a) mandates that the 120-day period during which a summary judgment motion must be made begins to run upon the filing of the note of issue." It noted that "[p]apers that are required to be filed are considered to have been filed when they are received by the office with which, or by the official with whom they are to be filed'" ( Id. at 613-614, quoting Castro v Homsun Corp. , 34 AD3d 616, 617). It thus specifically ruled that the date that the note of issue filed by the plaintiffs is received by the County Clerk is the date that it is considered filed for the purpose of time computation under CPLR 3212 (a) ( Coty, 42 AD3d at 614).
Although the Appellate Division, Second Department, has not yet directly addressed this issue, the Supreme Court, Queens County, in Ruelas v City of New York ( 16 Misc 3d 1139 [A], 2007 NY Slip Op 51751 [U], *2-3[Aug. 13, 2007]), as in Coty ( 42 AD3d at 613), noted that the date of the filing of the note of issue starts the computation of time for bringing a summary judgment motion under CPLR 3212 (a). Here, however, regardless of whether the date the note of issue was filed (i.e., December 1, 2006) or the date the note of issue was actually received by Morrison and Nicholas (i.e., December 8, 2006) is used to measure the beginning of the running of the 60-day period of Kings County Supreme Court Uniform Civil Term Rule 13, service of their motion for summary judgment was untimely since it was served on February 13, 2007, 74 days from the filing of plaintiff's note of issue and 67 days from Morrison and Nicholas' receipt of the note of issue. Thus, Morrison and Nicholas' motion was untimely and they have failed to show good cause for their belated filing of the motion based upon the minimal delay from the time of the filing of the note of issue to their receipt of it ( see Coty, 42 AD3d at 614).
The Court of Appeals has held that "statutory time frames — like court-ordered time frames . . . are not options, they are requirements to be taken seriously by the parties" ( Miceli v State Farm Mut. Auto. Ins. Co. , 3 NY3d 725, 726; see also Coty, 42 AD3d at 614; Perini Corp. v Coty of New York [Department of Envtl. Protection ],16 AD3d 37, 40). The trial of this action is scheduled to commence on August 16, 2007. Part of the legislative intent of CPLR 3212 (a) was to alleviate the practice of eleventh hour summary judgment motions, which tended to disrupt the court's trial calendar and to leave an adversary little or no time to reply ( see Brill v City of New York ,2 NY3d 648, 651; Gonzalez v Mag Leasing Corp., 95 NY2d 124, 128). Moreover, a belated summary judgment motion is "most burdensome for the court and for parties who ha[ve] already prepared for trial" ( Gonzalez, 95 NY2d at 128; see also Brill, 2 NY3d at 651).
The Court of Appeals has concluded 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, 2 NY3d at 652). To allow a late summary judgment motion without a showing of good cause would undermine, if not obliterate, the intent and purpose of CPLR 3212 (a) ( Id. at 653).
Consequently, a failure to show good cause for a late summary judgment must result in the denial of that motion ( see Miceli, 3 NY3d at 727; Brill, 2 NY3d at 653; Gonzalez v Zam Apt. Corp. , 11 AD3d 657, 658; Thompson v New York City Bd. of Educ. , 10 AD3d 650, 651). Here, as noted above, good cause has not been shown based upon Morrison and Nicholas' claim that there was a minor delay in their receipt of the note of issue following its filing ( see Coty, 42 AD3d at 614). Therefore, there was no misapprehension of the law or facts by the court in this regard ( see CPLR2221 [d][2]).
Morrison and Nicholas, in their reply papers, also reiterate the argument, raised in their original motion, that their attorney has stated that he had been unable to work due to illness on December 26, 2006, January 5, 2007 through January 8, 2007, and that he was also out from work from January 22, 2007 through January 26, 2007. This argument was already considered and rejected by the court since it does not show a satisfactory explanation which meets the showing of good cause. Morrison and Nicholas' attorney is one attorney in a multiple attorney firm ( see County of Nassau v Cedric Constr. Corp., 100 AD2d 899, 891 [1984]) and a perfunctory excuse is not considered good cause for a late summary judgment motion ( see Gonzalez, 11 AD3d at 658; Perini Corp., 16 AD3d at 40). "Reargument is not designed to afford the unsuccessful party successive opportunities to reargue issues previously decided" ( William P. Pahl Equip. Corp., 182 AD2d at 27; see also Pro Brokerage v Home Ins. Co., 99 AD2d 971, 971; Foley, 68 AD2d at 567).
Thus, inasmuch as Morrison and Nicholas have failed to demonstrate that this court overlooked or misapprehended the facts and/or law or mistakenly arrived at its earlier decision and since they merely attempt to rehash arguments already rejected by the court, their motion for reargument must be denied ( see CPLR2221 [d][2]).
Accordingly, Morrison and Nicholas' motion for reargument is denied.
This constitutes the decision and order of the court.