Opinion
No. CV–000126–11.
2012-08-9
PROPERTY TAX REDUCTION CONSULTANTS, INC., Plaintiff, v. Mary ZBRYSKI, Defendant.
Stern & Stern, P.C., for Plaintiff. Mary Zbryski, pro se, Defendant.
Stern & Stern, P.C., for Plaintiff. Mary Zbryski, pro se, Defendant.
FRED J. HIRSH, J.
The following named papers numbered 1–9 submitted on this motion on May 31, 2012.
+-------------------------------------------------------------------------+ ¦Papers ¦Numbered ¦ +--------------------------------------------------------------+----------¦ ¦Notice of Motion by Defendant and Affidavits Annexed ¦1–2 ¦ +--------------------------------------------------------------+----------¦ ¦Notice of Cross–Motion by Plaintiff and Affidavits Annexed ¦3–4 ¦ +--------------------------------------------------------------+----------¦ ¦Reply Affidavit in Support of Defendant's Motion ¦5 ¦ +--------------------------------------------------------------+----------¦ ¦Affidavit in Opposition to Plaintiff's Cross–Motion ¦6 ¦ +--------------------------------------------------------------+----------¦ ¦Motion for Summary Judgment by Defendant ¦6 ¦ +--------------------------------------------------------------+----------¦ ¦Opposition to Defendant's Motion for Summary Judgment ¦8 ¦ +--------------------------------------------------------------+----------¦ ¦Reply by Defendant ¦9 ¦ +-------------------------------------------------------------------------+
This action raises the issue of when a summary judgment must be made in a District Court action when a defendant is self represented.
BACKGROUND
A. Factual
Defendant Maryann Zbryski (“Zbryski”) is the owner of a one family home located at 2101 Longfellow Avenue, East Meadow, New York. Plaintiff Property Tax Reduction Consultants Inc. (“PTRC”) is a real property assessment reduction firm.
PTRC files grievances on behalf of homeowners seeking to challenge their real property assessment. If the application is denied at the administrative stage, PTRC will file a Small Claims Assessment Review (“SCAR”) proceeding at the request of the homeowner if the homeowner pays the filing fee.
PTRC claims Zbryski retained it represent her in challenging her real property assessments for the years 2004/2005 and 2005/2006. Under the terms of the retainer PTRC was to receive 50% of the first year's tax saving as its fee.
RPTC applied for but did not obtain a reduction in Zbryski's real property assessment for the year 2004/2005.
PTRC alleges it applied for and obtained a reduction in Zbryski's assessment for the year 2005/2006 that resulted in a tax saving of $1150.04. PTRC billed Zbryski $575.02. Zbryski never paid.
PTRC sues to recover the amount due for the services rendered together with legal fees and late charges it claims are due under the terms of the agreement.
B. Procedural
This action was commenced on January 3, 2011. Uniform District Court Act § 400(1).
The affidavit of service indicates Zbryski was served pursuant to CPLR 308(4) with the affixing having been done on January 11, 2011 and the mailing having been made on January 15, 2011. The affixing was at and the mailing was to 2101 Longfellow Avenue, East Meadow, New York.
Zbryski served an answer on March 15, 2011. Zbryski's answer contested service, denied having signed the agreement and denied granting RPTC authority to file a tax grievance on her behalf for the year 2005/2006.
Because Zbryski was self-represented, the clerk placed the matter on the trial calendar upon the filing of her answer. Uniform District Court Act § 1301.
Because the amount in controversy was less than $6000, the matter was referred to mandatory arbitration. 22 NYCRR 212.40(a); and 22 NYCRR Part 28. The action proceeded to mandatory arbitration on January 19, 2012.
Zbryski served and filed a demand for a trial de novo on February 21, 2012. 22 NYCRR 28.12(a).
By notice of motion served on February 28, 2012, Zbryski moved to compel RPTC to produce the original signed agreement.
By notice of motion served on March 14, 2012, RPTC cross-moved for summary judgment and opposed Zbryski's motion to compel production of the original agreement.By Notice of Motion served on April 12, 2012, Zbryski moved for summary judgment dismissing the complaint on the grounds (1) she was not properly served with the summons and complaint, (2) the signature on the retainer is not hers, (3) she did not authorized RPTC to file a tax grievance on her behalf for the year 2005/2006; (4) the retainer is confusing and violates the New York State Plain English Law.
Zbryski states other reasons for dismissal of this action. However, the other grounds are parts of the grounds stated above.
DISCUSSION
a. Plaintiff's Cross–Motion and Defendant's Motion for Summary Judgment
CPLR 3212(a) requires motions for summary judgment be made within 120 days of the filing of the Note of Issue “... except with leave of court on good cause shown.” Motion practice in the District Court is governed by the CPLR except to the extent the Uniform District Court Act provides to the contrary. Uniform District Court Act § 1001. Nothing in the Uniform District Court Act is contrary to the provisions of CPLR 3212(a) that require a motion for summary judgment be made within 120 days of the filing of the Note of Issue.
Where all parties are represented by an attorney, an action is placed on the District Court's trial calendar by the service and filing of a Notice of Trial and Certificate of Readiness for Trial. Siegel, New York Practice 5th §§ 369, 370; Uniform District Court Act § 1301; and 22 NYCRR 212.17(d); and 22 NYCRR 212.18.
A Notice of Trial is the District Court equivalent of a Note of Issue.
Where all parties to the action are all represented by an attorney, a motion for summary judgment must be made within 120 days of the filing of the Notice of Trial and Certificate of Readiness for Trial. Arbay v. Sunoco, Inc. (R & M), 31 Misc.3d 148(A) (App.Term 9th & 10th Jud. Dists.2011); and Greenfield v. Gluck, 2003 WL 1961333 (App.Term 2nd & 11th Jud. Dists.2003).
A party, even a party who is represented by an attorney, does not have to serve and file Notice of Trial and Certificate of Readiness for Trial to get the action on the District Court's trial calendar when any party to a District Court action is self-represented. When a self-represented party files an answer, the clerk is to “... fix a date for trial not less than fifteen nor more than thirty days after the date of joinder of issue ...” Uniform District Court Act § 1301.
In many if not most instances, even though the action is placed on the mandatory arbitration or trial calendar immediately upon a self-represented party filing an answer, the trial date set is more than 30 days from the date of the filing of the answer due to the volume of cases filed with the District Court. In 2011, over 46,000 civil cases were filed in the Nassau County District Court. This number does not include landlord-tenant or small claims actions.
The purpose of the amendment to CPLR 3212(a) that require summary judgment motions to be made within 120 days of the filing of the Notice of Trial or Note of Issue is to prevent parties from making a summary judgment motion at the “eleventh hour” when the action has been marked ready for trial. Gonzalez v. 98 Mag Leasing Corp., 98 N.Y.2d 124 (2000).
The court has discretion to permit a party to make a motion for summary judgment more than 120 days from the filing of the Notice of Trial upon “good cause”. CPLR 3212(a). In order to establish “good cause”, the moving party must provide the court with a satisfactory explanation for its failure to timely move for summary judgment. Brill v. City of New York, 2 N.Y.2d 648 (2004). Merit to the motion and/or lack of prejudice to the adversary do not constitute good cause for making a motion for summary judgment more than 120 days after the filing of the Notice of Trial. Id. The court must deny meritorious, non-prejudicial motion for summary judgment unless the moving party establishes good cause for the not moving timely. Id.; and Bivona v. Bob's Discount Furniture of NY, LLC, 90 AD3d 796 (2nd Dept.2011).
In this situation, the court must first determine whether the 120 day rule for making motions for summary judgment applies and, if it does, when the time begins to run.
A self-represented litigant acquires no greater rights than any other litigant. Duffen v. State, 245 A.D.2d 653 (3rd Dept.1997); Roundtree v. Singh, 143 A.D.2d 995 (2nd Dept.1988); and Greenfield v. Gluck, supra. Granting a self-represented party or a party represented by attorney where another party to the action in District Court is self-represented an exemption from the 120 day and good cause provisions of CPLR 3212(a) would provide litigants in such an action with rights greater than those provided to litigants in actions where all parties are represented by attorney. Therefore, the provision of CPLR 3212(a) requiring a party to make a motion for summary judgment within 120 days of the filing of a Notice of Trial must apply to an action in which any party is self-represented. Greenfield v. Gluck, supra.
Neither CPLR 3212(a) nor the provisions of Uniform District Court Act or the Court Rules relating to practice in the District Court indicate when the time to make a motion for summary judgment beings to run when a party in a District Court action is self-represented.
Since the filing of an answer by a self-represented party results in the action being placed on the District Court's trial calendar [Uniform District Court Act § 1301], the filing of an answer by a self-represented party is the procedural equivalent of the filing of a Notice of Trial and Certificate of Readiness for Trial. Therefore, the time for any party to an action in which any defendant is self-represented to move for summary judgment begins to run when the self-represented party files an answer.
In this case, Zbryski filed her answer on March 15, 2011. The time for either party to this action to move for summary judgment began to run on that date. Plaintiff's cross-motion for summary judgment was made on March 14, 2012. CPLR 2211. Defendant's motion for summary judgment was made on April 12, 2012. Id. Both motions were made well more than 120 days from the date defendant filed her answer. In a case such as this where neither party demanded discover, the action has already proceeded to mandatory arbitration, a party has demanded a trial de novo and the motion and cross-motion for summary judgment were not made until after a party had demanded a trial de novo and the action has been placed on the calendar for the trial de novo, the motions are untimely. Since neither party offered an explanation for their failure to timely move for summary judgment, plaintiff's cross-motion and defendant's motion for summary judgment are denied as untimely. Brill v. City of New York, supra.
The time for a party to make a motion for summary judgment could be extended should either party timely seek discovery. See, CPLR 3212(f). The need to conduct and complete discovery would be good cause for extending a party's time to move for summary judgment.
b. Zbryski's Motion to Dismiss for Failure to Make Proper Service
A motion to dismiss for improper service is not a motion for summary judgment. It is a motion to dismiss pursuant to CPLR 3211(a)(8).
A motion to dismiss for improper service must be made either by pre-answer motion or within 60 days of service of an answer unless undue hardship prevented the defendant from making such a motion. CPLR 3211(a)(e). The “undue hardship” provision of CPLR 3211(e) requires the party seeking to dismiss for lack of jurisdiction due to improper service to establish that a motion to dismiss could not be made within the sixty (60) day period with the exercise of due diligence. Abitol v. Schiff, 180 Misc.2d 949 (Sup.Ct. Queens Co.1999).
Zbryski served her answer on March 14, 2011. She offers no explanation for her failure to move to dismiss for lack of jurisdiction either by pre-answer motion or within 60 days of the service of her answer. Therefore, her motion to dismiss for failure to make proper service is denied as untimely.
c. Zbryski's Motion to Compel Discovery
Zbryski seeks to review the original signed contract. This document would be the best evidence of Zbryski's agreement with RPTC. Prince–Richardson On Evidence § 10–101 (11th Ed. Farrell 1995). RPTC will be required to produce this document at trial or offer a satisfactory explanation for its absence. Id.
RPTC could establish a copy as the original if it establishes the basis for introducing a copy. See, Prince–Richardson On Evidence § 10–110 (11th Ed. Farrell 1995); and CPLR 4539.
Therefore, plaintiff shall advise Zbryski within 30 days of the date of this order if the original is available and shall make same available for Zbryski's inspection at plaintiff's attorneys' office.
Accordingly, it is
ORDERED, that defendant's motion and plaintiff's cross-motion for summary judgment are denied; and it is further
ORDERED, that defendant's motion to dismiss for lack of jurisdiction is denied; and it is further
ORDERED, that defendant's motion to compel discovery is granted to the extent that plaintiff shall advise defendant regarding whether the original agreement is still in existence within 30 days of the date of this order and if so, shall make the original available for inspection and copying at the office of plaintiff's attorney; and it is FURTHER
ORDERED, that the attorney for the plaintiff and the defendant shall appear for a pre-trial conference in District Court, Nassau County, Civil Part 3, 99 Main Street, Courtroom 259, Hempstead, New York on September 24, 2012 at 9:30 a.m.
This constitutes the decision and order of this Court.