Opinion
22759/04.
Decided July 11, 2008.
Plaintiff Harold Hope was represented by Richard S. Weiss, Esq. of Koenigsberg Associates, P.C. Plaintiff Theodore McField was represented by Mark J. Linder, Esq. of Harmon, Linder Rogowsky, Esqs. Defendants were represented by Barry N. Greenberg, Esq. of the Law Offices of Edward Garfinkel.
In this personal injury action arising out of a motor vehicle accident, plaintiff Theodore McField and plaintiff Harold Hope each moves for an order, pursuant to CPLR 3212, granting partial summary judgment against Defendants on the issues of liability and "serious injury" as that term is defined under Insurance Law § 5102(d). Plaintiff McField also moves for an order, pursuant to CPLR 3126, striking Defendants' Answer for failure to appear for a deposition.
Initially, plaintiff Theordore McField's summary judgment motion and plaintiff Harold Hope's cross-motion for summary judgment must be denied for failure to include a complete set of the pleadings. ( See CPLR 3212[b]; Wider v Heller , 24 AD3d 433, 434 [2d Dept 2005].)McField fails to attach, among other things, any of the pleadings of plaintiff Harold Hope; and Hope fails to attach, among other things, Defendants' Answers and plaintiff McField's pleadings.
In any event, both the motion and cross-motion must also be denied as untimely. On July 20, 2004, plaintiff Harold Hope commenced the instant action against Defendants. Plaintiff Harold Hope filed the Note of Issue on December 21, 2006. On January 19, 2007, plaintiff Theodore McField commenced an action against Defendants in Queens County under Index No. 1807/07. By order, dated May 25, 2007, the actions were consolidated for joint trial only. While a copy of the joint trial order is not attached to any of the papers, a joint trial order provides that each action maintains its own index number and requires its own note of issue.
But a so-ordered stipulation, dated September 14, 2007, provides:
"It is hereby stipulated and agreed to by the undersigned that the Court Order dated May 25th, 2007 for Joint Trial is hereby amended into a consolidation order as executed on September 14th 2007. Defendants to provide plaintiff McField with depositions and transcripts of defendant Anthony J. Fortunato and Harold Hope within 45 days. Plaintiff McField to notify Defendants if they wish to redepose Defendant within 30 days of receipt of transcripts. Deposition of plaintiff McField to be held by 10/31/07. Defendants to Notice IME by 11/17/07. IME to be held on 12/17/07."
The Consolidation Order, also dated September 14, 2007, provides, among other things, that the file of index number 1807/07 be consolidated "for all purposes" into the file of index number 22759/04, that a new caption be drawn to include plaintiff McField, and that the pleadings in each action shall stand as the pleadings in the consolidated action. As such, index number 1807/07 was eliminated, and plaintiff McField's action also assumed index number 22759/04.
Indeed, this case illustrates the distinction between an "organic" consolidation and a joint trial. An "organic" consolidation, or a consolidation "for all purposes," merges the actions into a single action "to be disposed of by a single decision or verdict . . and a single judgment with one bill of costs; the new title is one which merges all the litigants into one group of plaintiffs and one group of defendants." ( Padilla v Greyhound Lines, Inc., 29 AD2d 495, 497 [1st Dept 1968]; see also Empire State Pipeline v Town of Arcadia Assessor, 270 AD2d 830, 830 [4th Dept 2000]; In the Matter of Assoc. Blind Hous. Dev. Corp. v State of NY Dept. of Public Service, 142 AD2d 825, 827 [3d Dept 1988]["Consolidation is the merging of various actions into one action, which takes on one caption and culminates in one judgment."] A joint trial, on the other hand, "preserves the integrity of the several actions, requires a separate decision or verdict . . . with costs of the particular action in each case." ( Padilla v Greyhound Lines, Inc., 29 AD2d at 497; see also Vojtec Blau, Inc. v Sara, 160 Misc 2d 431, 433 [Sup Ct, New York County 1994] ["Joint trial, on the other hand, maintains the separate character of each action but secures the practical advantage of a single trial of the issues common among them."].)
When two or more cases are consolidated for all purposes into one case, ie. an "organic" consolidation, this necessarily means that there be only one note of issue filed in the action. Court rules provide, in pertinent part, that "[n]o action . . . shall be deemed ready for trial or inquest unless there is first filed a note of issue accompanied by a certificate of readiness, with proof of service on all parties entitled to notice . . ." ( See McKinney's 2008 New York Rules of Court § 202.21[a] [ 22 NYCRR § 202.21(a)].) As such, the primary function of the note of issue is to have the action deemed ready for trial. Any party to the action may move to vacate the note of issue within 20 days of service of same, upon affidavit showing, among other things, in what respects the case is not ready for trial. ( See id., § 202.21[e].) Therefore, it is clear that the rule requires only one note of issue to be filed per action, and that if a party objects to the filing of the note of issue, such party may move to vacate it.
The effect of an "organic" consolidation with respect to a note of issue is exemplified in Empire State Pipeline v Town of Arcadia Assessor ( 270 AD2d at 830). In that case, the Fourth Department held that the respondents' motion to dismiss various tax certiorari petitions commenced in 1994 and 1995 on the ground that the petitioner failed to file notes of issue within four years from the date of the commencement of those proceedings as required by RPTL 718(2)(d) was denied, because the petitions had subsequently been consolidated for all purposes into a 1997 proceeding for which the time to file the note of issue had not expired. The Court implicitly recognized that there need only be one note of issue because the various proceedings had all been consolidated into one proceeding.
The result is also consistent with CPLR 3402(b), which provides, in effect, that a note of issue is effective against a new party that is brought in the case, and with caselaw that a note of issue filed in the main action is effective as to a third-party action ( see Stanovick v Donner-Hanna Coke Corp., 116 AD2d 1000,1000 [4th Dept 1986].)
Here, the agreement to have the McField action consolidated "for all purposes" into the Hope action results in McField's action being subject to the Note of Issue that was already filed by plaintiff Hope on December 21, 2006. Neither the so-ordered stipulation nor the resulting consolidation order, each dated September 14, 2007, vacates the previously-filed Note of Issue, or extends the time to make any summary judgment motion.
A subsequent order, dated November 30, 2007, provides, among other things, that plaintiff McField's deposition be held on December 3, 2007, and that his IME be held within 45 days therefrom. The order also states, "NOI to be filed by 2/1/08," which, of course, was unnecessary, and had literally been complied with, since the note of issue had already been filed. Notably, the order contains the invalid Queens County index number 1807/07. This order does not extend the time to file any summary judgment motion, and cannot be fairly understood to do so.
Despite the September 14 and November 30 orders, plaintiff McField did not appear for his deposition until December 27, 2007. Plaintiff McField served the instant summary judgment motion on March 7, 2008, and plaintiff Hope served his cross-motion for summary judgment on May 16, 2008.
CPLR 3212(a) provides, among other things, that the court may set a date after which no summary judgment motion may be made, such date being no earlier than thirty days after the filing of the note of issue. Rule 13 of the Kings County Supreme Court Civil Term provides that "no motion may be made more than 60 days after filing a Note of Issue . . . except with leave of the Court on good cause shown." CPLR 3212(a) requires that if no date is set by the court, a summary judgment motion "shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown." "[S]ummary judgment motions should be timely made, or good cause shown." ( Miceli v State Farm Mutual Automobile Ins. Co. , 3 NY3d 725, 726.) "[S]tatutory time frames-like court-ordered time frames — are not options, they are requirements, to be taken seriously by the parties." ( Id.)
In his motion, plaintiff McField acknowledges that "[t]his office has not filed a note of issue and is not required to file a note of issue because this is a pure consolidation and a note of issue was previously filed in the Hope action." Plaintiff McField's statement in this respect acknowledges that the November 30, 2007 order was unnecessary, and had been complied with, to the extent it required that the note of issue be filed by February 1, 2008. Plaintiff McField has not moved, at any time, to vacate the previously-filed Note of Issue ( see McKinney's 2008 New York Rules of Court § 202.21[e] [ 22 NYCRR § 202.21(e)]), or to vacate or modify any of the prior orders ( see CPLR 2221.)
Plaintiff McField also contends that "[t]his office should not be held to the 60 day rule for filing summary judgment motions in light of the fact that discovery is still incomplete with regard to the McField action through no fault of plaintiff." In this respect, plaintiff McField contends that Defendants' deposition is outstanding. He fails to mention, however, the so-ordered stipulation, dated September 14, 2007, signed by counsel, providing that plaintiff McField notify Defendants if he wishes to take their deposition within 30 days of receipt of, among other things, the transcripts of Defendants' deposition taken by plaintiff Hope. McField fails to indicate the date of receipt of the transcripts, and fails to demonstrate any attempt to secure Defendants' deposition within the required time period. In this regard, in his Reply Affirmation, McField submits an affidavit from his attorney's "EBT clerk" Olga Markevich, to the effect that she left a message for defense counsel's "EBT Clerk" on January 8, 2008 in order to schedule Defendants' deposition. Even so, McField fails to show that the call was made within 30 days of receipt of the transcripts, and, in any event, that any other steps besides a single unreturned phone call were taken.
Plaintiff McField also fails to make any reference to the discovery order, dated November 30, 2007, which only requires that plaintiff McField appear for a deposition, and does not even mention any outstanding Defendants' deposition. As such, plaintiff McField waived Defendants' deposition. Moreover, plaintiff McField fails to explain why he failed to timely appear for his own deposition as scheduled in the September 14 and November 30 orders. As such, contrary to his contention that the delay was "through no fault" of Plaintiff, it appears that any delay in discovery was, in part, due to plaintiff McField's own failure to timely appear for his deposition.
Perhaps most importantly, plaintiff McField also fails to explain how any outstanding discovery, including Defendants' deposition, would have been necessary to establish prima facie entitlement to summary judgment. Rather, in support of his motion, McField relies exclusively on his own deposition transcript and his own physician's affirmations and affirmed medical reports.
In denying McField's motion as untimely, the Court acknowledges that, by the time the parties agreed to consolidate the two actions, the time for summary judgment motions had already expired. Indeed, plaintiff Hope filed the Note of Issue before McField even commenced his action. But this fact, in itself, cannot supply plaintiff McField with "good cause" to bring an untimely summary judgment motion, nor does he so contend. McField charted this procedural course by agreeing to consolidate his action into an action in which the note of issue had already been filed, never seeking to vacate the note of issue, never seeking an extension of time to move for summary judgment, and never seeking to vacate or modify any of the prior orders. It is not for the Court to speculate as to whether plaintiff McField fully considered the ramifications of agreeing to consolidate his action into an action in which the note of issue had already been filed. Plaintiff McField may have believed that such a consolidation gave him some advantage such as, among other things, having his case on the trial calendar sooner, or foreclosing Defendants from bringing a summary judgment motion without leave of court.
Even if McField's argument were understood as a claim of law office failure, "[t]he strictness mandated by Brill and Miceli necessarily implies that law office failure cannot generally be deemed to constitute good cause,' since, if good cause included law office failure, it would exist in every case of untimeliness where the opposing parties were not prejudiced by the delay." ( Farkas v Farkas , 40 AD3d 207, 212 [1st Dept 2007]; see also Azcona v Salem, ___AD3d___, 2008 NY Slip Op 02195, *1 [1st Dept 2008]; Crawford v Liz Claiborne, Inc. , 45 AD3d 284, 286 [1st Dept 2007]; Breiding v Giladi , 15 AD3d 435, 435 [2d Dept 2005].)
McField does not suggest any point of reference by which the timeliness of his motion should be measured, but rather contends that he should be exempt from the 60-day rule. Even though the November 30, 2007 order sets February 1, 2008 as a date for a note of issue to be filed, plaintiff McField correctly takes the position that it was unnecessary for him to do so because plaintiff Hope already had filed the Note of Issue. As such, McField never filed a note of issue or even attempted to do so. Had McField attempted to file a note of issue, it would likely have been rejected since the November 30, 2007 order contained an invalid Queens County index number, and the note of issue had already been filed under the proper index number.
It should be noted that, even if the Court were to consider that discovery was permitted and occurred after the filing of the Note of Issue, such discovery was complete upon the taking of plaintiff's McField's deposition and the completion of McField's IME. The consolidation would be considered an "unusual or unanticipated circumstance" so as to justify post-note-of-issue disclosure. ( See McKinney's 2008 New York Rules of Court § 202.21[d] [ 22 NYCRR § 202.21(d)].) The Court declines to extend the time for plaintiff McField to move for summary judgment based upon McField's own failure to comply with court-ordered discovery dates. To do so would allow Plaintiff to unilaterally extend the date by which he can move for summary judgment by simply adjourning his own deposition.
Accordingly, plaintiff McField's motion for an order, pursuant to CPLR 3212, granting him summary judgment is denied in its entirety. Plaintiff McField's motion for an order, pursuant to CPLR 3126, striking Defendants' pleadings is also denied since plaintiff McField waived Defendants' deposition.
Since plaintiff McField's motion for summary judgment is untimely, plaintiff Hope's cross-motion for summary judgment must also be denied as untimely. ( See e.g. Bressingham v Jamaica Hosp. Med. Ctr. , 17 AD3d 496, 496 [2d Dept 2005]; Ripepe v Crown Equipment Corp., 300 AD2d 647, 647 [2d Dept 2002].) Indeed, plaintiff Hope filed the Note of Issue over a year and a half ago.
Finally, it should be noted that on April 11, 2008, the original return date of plaintiff McField's motion, the parties entered into a so-ordered stipulation adjourning the return date to May 16, and setting forth a briefing schedule for service of opposition and reply papers. On May 16, the parties again entered into a so-ordered stipulation adjourning the motion to June 20, and providing that "plaintiff Hope is directed to file the cross-motion today and motion support shall calendar the cross-motion for 6/20/08." On neither the April 11 or May 16 return dates was the Court provided with any procedural history, and merely acceded to the parties' application for an adjournment at the calendar call. In this regard, the Court so-ordered the stipulation within its discretion to manage its own calendar, and did not address the substantive issue of the timeliness of either the motion or cross-motion.
Accordingly, Plaintiffs' respective motion and cross-motion are denied in their entirety.