Opinion
Index No. 810905/2021E
06-05-2023
RLF II STILLWELL, LLC, Plaintiff, v. Steven RILEY and Safe Land & Lots Industries LLC a/k/a Safe Land and Lots Industries, LLC a/k/a Safe Land & Lots, LLC, Defendants.
Plaintiff RLF II Stillwell, LLC, Jeanne Barenholtz, Esq. ([email protected] ), Alan Heller, Esq. ([email protected] ), Foster Garvey P.C., 100 Wall Street, 20th Floor, New York, NY 10005, (212) 431-8700 Pro Se Defendant Steven Riley
Plaintiff RLF II Stillwell, LLC, Jeanne Barenholtz, Esq. ([email protected] ), Alan Heller, Esq. ([email protected] ), Foster Garvey P.C., 100 Wall Street, 20th Floor, New York, NY 10005, (212) 431-8700
Pro Se Defendant Steven Riley
Veronica G. Hummel, J. In accordance with CPLR 2219(a), the decision herein is made upon consideration of all papers filed in NYSCEF in connection with pro se defendant STEVEN RILEY's ("Riley ") motion (Seq No. 6) seeking an order, pursuant to 22 NYCRR 202.48, dismissing the action as to him on the ground that plaintiff RLF II STILLWELL, LLC's ("Plaintiff ") proposed orders on Motion Sequence Nos. 4 and 5 were untimely filed. The Honorable Kenneth L. Thompson, Jr., J.S.C., issued a Decision in this action on March 7, 2022, granting Plaintiff's motions for summary judgment against Riley and for default judgment against defendant SAFE LAND & LOTS INDUSTRIES LLC a/k/a SAFE LAND AND LOTS INDUSTRIES, LLC a/k/a SAFE LAND & LOTS, LLC ("Safe Land "). (NYSCEF Docs. 80 & 81) The Clerk entered the Decision in NYSCEF on March 14, 2022.
The Decision directed Plaintiff to "[s]ettle order." Accordingly, as to each of Motion Sequence Nos. 4 and 5, Plaintiff e-filed separate notices of settlement with proposed orders on September 15, 2022 (NYSCEF Docs. 84 & 85), approximately six months, or 185 days, after entry of the March 7, 2022 Decision. Riley now contends that the proposed orders were filed untimely pursuant to 22 NYCRR 202.48(a), which provides that "[p]roposed orders or judgments, with proof of service on all parties where the order is directed to be settled or submitted on notice, must be submitted for signature ... within 60 days after the signing and filing of the decision directing that the order be settled or submitted." As a result, Riley contends that this action should be dismissed as abandoned pursuant to 22 NYCRR 202.48(b).
Plaintiff argues, however, that 202.48(a)’ s 60 -day rule is inapplicable here because the March 7, 2022 Decision merely directed Plaintiff to "settle order," rather than to "settle order on notice. " And, even if the 60-day rule applies, Plaintiff argues that this Court should still exercise its discretion to accept the belatedly filed proposed orders, because: (1) the delay was caused by Plaintiff's consultation with its title company to ensure that the proposed orders contained the language needed to protect Plaintiff's rights; (2) not accepting the propose orders would result in a waste of judicial resources; and (3) Riley is not prejudiced by the delay in filing the proposed orders.
Riley does not submit any reply.
Upon review of the relevant authorities, the Court concludes that 22 NYCRR 202.48(a) did in fact apply to Plaintiff's submission of the proposed orders. The New York Court of Appeals has spoken on this topic in Funk v. Barry , 89 N.Y.2d 364, 653 N.Y.S.2d 247, 675 N.E.2d 1199 (1996). There, the Court of Appeals examined 202.48(a) and distinguished between a decision that directs a party to "submit order" and one that directs a party to "settle order":
By its plain terms, section 202.48(a) speaks to the circumstances where the court's decision expressly directs a party to submit or settle an order or judgment. When a decision ends with the directive to "submit order," the court is generally directing the prevailing party to "draw[ ] the order and present[ ] it to the judge ... who looks it over to make sure it reflects the decision properly, and then signs or initials it." This procedure typically calls for no notice to the opponent.
A directive to "settle," by contrast, "is reserved for more complicated dispositions, such as orders involving restraints or contemplating a set of follow-up procedures." Because the decision ordinarily
entails more complicated relief, the instruction contemplates notice to the opponent so that both parties may either agree on a draft or prepare counter proposals to be settled before the court. The common elements in both directives is that further drafting and judicial approval of the judgment or order is contemplated.
However, where no drafting by the parties is necessary because the matter involves an uncomplicated disposition or
simple judgment for a sum of money which speaks for itself, or where "the court or clerk draws the order," no direction to submit or settle will be utilized. In such cases, the order or judgment may then simply be "entered by the clerk without prior submission to the court" pursuant to CPLR 5016.
89 N.Y.2d at 367, 653 N.Y.S.2d 247, 675 N.E.2d 1199 (citations omitted). Because the verdict rendered in Funk involved only a simple judgment for the payment of a sum of money, the lower court "did not direct that any party ‘settle’ or ‘submit’ a proposed judgment for signature, and the 60-day rule was not triggered." Id. at 368, 653 N.Y.S.2d 247, 675 N.E.2d 1199.
In Funk , the Court of Appeals never expressly states or otherwise alludes to a requirement that the phrase "on notice" be used by a court's decision directing settlement in order to trigger 202.48(a)’ s 60 -day rule. Rather, Funk appears to recognize that a simple direction to "settle" is sufficient to trigger 202.48(a). Indeed, this is consistent with the Court of Appeals’ description of what the settlement procedure contemplates and entails. Settling an order is a procedure that inherently requires notice be provided to the non-prevailing parties. Without notice, non-prevailing parties would not be afforded the opportunity to submit proposed counter-orders or -judgments, and the final order incorporating (or not) the proposed changes could not be "settled" before the court on the settlement date. Thus, the direction to "settle order" necessarily implies a procedure involving the giving of notice, in accordance with 202.48(c)(1), regardless of whether the phrase "on notice" is used.
Plaintiff relies primarily on the Second Department's decision in Ishakis v. Lieberman , 150 A.D.3d 1114, 54 N.Y.S.3d 654 (2d Dep't 2017). In that decision, the Second Department held that, "since this Court's decision and order in the prior appeals did not expressly direct that the judgment be settled on notice, the provisions of 22 NYCRR 202.48 did not apply." Id. at 1115, 54 N.Y.S.3d 654 (citations omitted). But nowhere does that decision indicate whether the Second Department's previous decision in the matter included a direction to "settle order," without use of the phrase "on notice," or if the decision omitted any direction to "settle order" entirely. Presuming that the prior decision to which the Second Department refers is the decision it issued on May 27, 2015, and published at Ishakis v. Lieberman , 128 A.D.3d 1066, 9 N.Y.S.3d 646 (2015), there clearly was no direction to "settle order," with or without the phrase "on notice," at all. Thus, Ishakis is inapposite.
Plaintiff overlooks a later decision from the Second Department that is directly on point and contrary to Plaintiff's position on the instant motion. Specifically, in LaSalle Bank N.A. v. Benjamin , 164 A.D.3d 1223, 1225, 83 N.Y.S.3d 592 (2d Dep't 2018), the Second Department observed that the trial-court decision at issue "directed the plaintiff to ‘settle order.’ " Relying on Funk , the Second Department then held that "the plaintiff was required to submit a notice of settlement and proposed order within 60 days" pursuant to 202.48(a). Contrary to Plaintiff's argument, the Second Department recognizes, therefore, that the simple direction to "settle order" (without use of the phrase "on notice") triggers 202.48(a).
The second case on which Plaintiff relies, Bronakoski v. Bronakoski , 69 Misc.3d 224, 128 N.Y.S.3d 156 (N.Y. Sup. Ct. Monroe Cty, 2020), is also distinguishable. There, in refusing to vacate its prior decision in the matter, the trial court held that its prior decision that simply stated "submit order" did not trigger 202.48(a)’ s 60 -day rule. Id. at 225-26, 128 N.Y.S.3d 156. The trial court relied on what it determined was the "prevailing view in the Second Department" originating from Pol v. Ashirov , 131 A.D.3d 523, 16 N.Y.S.3d 63 (2d Dep't 2015), and In re Matthew L. , 85 A.D.3d 917, 925 N.Y.S.2d 353 (2d Dep't 2011). At issue in Pol was a decision in which the trial court refused to sign a proposed judgment but granted the plaintiffs leave to "resubmit proper judgment of foreclosure and sale." 131 A.D.3d at 523-24, 16 N.Y.S.3d 63. The Second Department, relying on In re Matthew L. and Funk , held that " 22 NYCRR 202.48 does not apply where, as here, the court merely directs a party to ‘submit order’ or judgment without expressly directing that the order or judgment be submitted on notice." Id. at 524, 16 N.Y.S.3d 63. In re Matthew L. involved similar circumstances, and the Second Department, also relying on Funk , held that the mere directive to "submit order," without express direction to do so "on notice," did not trigger 202.48(a)’ s 60 -day rule. 85 A.D.3d at 918, 925 N.Y.S.2d 353.
The Second Department in Pol expressly stated that the parties’ dispute over the earlier trial-court decision containing the words "settle order" was not then before the Second Department on appeal. 131 A.D.3d at 523, 16 N.Y.S.3d 63.
The theme uniting these three cases is clear: each of them involves a mere direction to "submit order." And, in each of them, the court held that the omission of an express direction that the proposed order should be submitted "on notice" resulted in 202.48(a)’ s 60 -day rule not being applicable. The decisions rely on Funk which recognized that the "submit order" procedure "typically calls for no notice to the opponent." 89 N.Y.2d at 367, 653 N.Y.S.2d 247, 675 N.E.2d 1199.
In contrast, as Funk also recognized, the "settle order" procedure inherently calls for notice. Thus, contrasting Bronakoski , Pol , and In re Matthew L. with LaSalle , two lines of caselaw appear to have developed around the "submit order" and "settle order" procedures requiring that different language be use when invoking one or the other procedure in order to trigger 202.48(a)’ s 60 -day rule, to wit: (1) where a court wishes for a party to "submit order," the court must expressly direct that that party do so "on notice" to trigger 202.48(a); but (2) where the court wishes for the parties to "settle order," 202.48(a) will be triggered regardless of whether the court expressly directed the parties to do so "on notice." Here, however, the Court need not determine whether the former line of caselaw is correct or whether to follow it, because the only directive at issue in this case is the March 7, 2022 Decision's directive to "settle order." The Court's conclusion that a directive to "settle order" alone triggers 202.48(a) is well-supported by Funk and LaSalle and by the fundamental nature of that procedure.
Consequently, by filing its proposed orders approximately six months after issuance of the March 7, 2022 Decision directing Plaintiff to "settle order," Plaintiff violated 22 NYCRR 202.48(a) ’ s 60 -day rule.
Nevertheless, based Plaintiff's explanation for the delay in the submission of the proposed orders and the lack of any apparent prejudice to Riley as a result of the delay, and in the interests of justice and the need to preserve judicial resources, the Court will exercise its discretion to accept Plaintiff's belatedly filed proposed orders. See Levine v. 525 W. Owners Corp. , 5 A.D.3d 301, 773 N.Y.S.2d 541 (1st Dep't 2004) ; Orozco v. 725 S. Blvd., LLC , No. 17245/05, 2009 WL 7746964 (N.Y. Sup. Ct. Bronx Cty. Oct. 16, 2009).
The Court has considered the additional contentions of the parties not specifically addressed herein. To the extent that any relief requested by the parties was not addressed by the Court, it is hereby denied.
Accordingly, it is hereby:
ORDERED that pro se defendant STEVEN RILEY's motion (Seq No. 6) seeking an order, pursuant to 22 NYCRR 202.48, dismissing the action as to him on the ground that plaintiff RLF II STILLWELL, LLC's proposed orders on Motion Sequence Nos. 4 and 5 were untimely filed is DENIED ; and it is further
ORDERED that the Clerk shall mark the motion (Seq. No. 6) decided in all court records; and it is further
ORDERED that plaintiff RLF II STILLWELL, LLC shall, on or before June 19, 2023 , serve a copy of this Order on defendants by regular and overnight mail; and it is further
ORDERED that plaintiff RLF II STILLWELL, LLC shall, on or before June 30, 2023 , e-file to NYSCEF an affidavit of service.
This constitutes the Decision and Order of the Court.