Opinion
Index No. 514073/2020
10-31-2023
Lioudmila Shmerelzon, Plaintiff, v. Gravesend Management, Inc. AND MICHAEL POGREBINSKY, Defendant.
Unpublished Opinion
Aaron D. Maslow, J.
Papers Considered:
NYSCEF Document Numbers 69-84 (documents filed specifically with respect to this motion), (other document, Note of Issue & Certificate of Readiness for Trial, filed heretofore with respect to this action).
Plaintiff's attorney's second adjournment request - made in a "Stipulation Adjourning Motion" unsigned by Defendants' attorney - is DENIED.
This is the second of Plaintiff's attorney's requests for an adjournment today. In an initial stipulation filed today at 11:58 a.m., the parties consented to adjourn Motion Sequence No.4 - Defendants' motion for summary judgment asserting a lack of serious injury - to December 20, 2023 (see NYSCEF Doc No. 82). This Court denied the initial adjournment request around 4:57 p.m., when the denial was uploaded to NYSCEF (see NYSCEF Doc No. 83). The denial was predicated on a failure to comply with IAS Part 2 Rules. The pertinent Rules provide as follows:
Specifying a date is contrary to this Part's Rules, which provide, "Under no circumstances shall counsel stipulate to adjourn a motion to a specific date; since adjournments are at the discretion of the Court, if a motion is adjourned the Court will determine the adjourned date (see Part 2 Rules, Part I [D] [3], infra at 2).
PART I. MOTIONS & SPECIAL PROCEEDINGS
...
Subpart D. Adjournments
1. Standards and procedures for seeking adjournments. All adjournments are at the discretion of the Court. Applications for adjournments and stipulations of adjournment shall be submitted through NYSCEF or by filing a paper copy with the Court at Motion Support, Room 227, at 360 Adams Street (with a copy served upon all other counsel or pro se parties). The deadline for filing such applications for adjournments and stipulations of adjournments shall be 5:00 p.m. of the third day prior to the scheduled motion date. If said third day prior to the scheduled motion date is a Saturday, Sunday, or holiday, the deadline shall be 5:00 p.m. of the last business day before said third day prior to the scheduled motion date. All applications for adjournments and stipulations of adjournment submitted in the aforesaid manner shall also be emailed to the Part Clerk and the law clerks.
2. Late requests for adjournments. If an application for adjournment or stipulation of adjournment has not been submitted in the foregoing manner, and counsel still wishes to apply for an adjournment, application shall be made only in person on the scheduled motion date.
3. Contents of applications for adjournments and stipulations of adjournment. Applications for adjournments and stipulations of adjournment must (a) identify which party seeks the adjournment, (b) set forth the good-cause reason for it, (c) provide details of any prior adjournments of the motion, and (d) list future motion calendar dates for other sequenced motions in the case. Under no circumstances shall counsel stipulate to adjourn a motion to a specific date; since adjournments are at the discretion of the Court, if a motion is adjourned the Court will determine the adjourned date.
4. Inquiries regarding stipulations of adjournment. Counsel are not to assume that an application for adjournment or a stipulation of adjournment will be approved. Inquiries as to whether an application for adjournment or a stipulation of adjournment has been approved shall be made to the Part Clerk, if counsel has not yet received a response.(New York State Unified Court System, Hon. Aaron D. Maslow: Part 2 Rules, Part I, Subpart D, https://ww2.nycourts.gov/courts/2jd/kings/civil/MaslowRules.shtml.)
The initial stipulation failed to "(a) identify which party seeks the adjournment, (b) set forth the good-cause reason for it, (c) provide details of any prior adjournments of the motion, and (d) list future motion calendar dates for other sequenced motions in the case" (id.).
The second stipulation was received by chambers but was not submitted through NYSCEF, as required by this Part's Rules. The second stipulation stated that Plaintiff was requesting the adjournment "as Plaintiff is still awaiting affidavits from Plaintiff's treating physicians in order to properly respond to the motion. No prior adjournments of this motion have been requested or granted. There are no other pending motions in this matter."
So that it is part of the record, this Court will upload the second stipulation to NYSCEF as NYSCEF Doc No. 84.
This Court finds that good cause has not been presented for seeking the adjournment. The treating physicians are not identified. Nor is an explanation provided as to why, until now, Plaintiff's attorney has been unable to procure the affidavits or, even when the request for same was made to the physicians. Is it just affidavits or is anything else not ready for submission?
The Court notes that nothing has been submitted yet by Plaintiff in opposition to Defendants' motion.
This action is one for injuries allegedly sustained in a January 5, 2019 motor vehicle accident when Plaintiff was a passenger (see NYSCEF Doc No. 72, Bill of Particulars ¶ 3). The action was commenced on August 4, 2020 (see NYSCEF Doc No. 71, Summons). Motion Sequence #4, Defendants' summary judgment motion on Insurance Law § 5102(d)'s serious injury threshold requirement, was filed by Defendants on July 18, 2023. It is about three and a half months since then, and Plaintiff's attorney has not explained why it has not procured "affidavits from Plaintiff's treating physicians" (NYSCEF Doc No. 82).
In any event, Plaintiff's counsel did represent to the Court that all medical reports had been exchanged, as per the Certificate of Readiness for Trial appended to the Note of Issue filed on May 26, 2023 (see NYSCEF Doc No. 67 at 2). Therefore, the medical records are in counsel's possession. In fact, since the commencement of this action in 2020, several years have elapsed during which the medical records could have been authenticated as required by law.
Perhaps more than affidavits have been sought. If it is a more recent examination of Plaintiff that is sought - in order to rebut the IME of Defendant's examining doctor - one could have been arranged ever since June 21, 2022, when Dr. Pierce J. Ferriter examined Plaintiff at Defendants' behest (see NYSCEF Doc No. 78).
An attorney has a duty to a client to act with reasonable diligence and promptness and not to neglect a matter (see Rules of Prof Conduct [22 NYCRR 1200.0] rule 1.3 [a], [b]); also to reasonably consult with the client about the means by which the client's objectives are to be accomplished (see id. rule 1.4 [a] [2]). This would include maintaining contact with the client to determine if an IME of the client was conducted and when, so that if the IME results are contrary to the client's position, the client can be advised to be examined by her treating physician or another one.
Plaintiff's counsel could have made a good faith showing by submitting the medical records he did have in its possession and explaining in a timely submitted stipulation or application exactly what was lacking, why it was lacking, from whom it was lacking, and the good faith efforts made to procure what was lacking, with dates and details. This was not done.
Any additional content set forth in any email to chambers was not uploaded to NYSCEF as part of the stipulation, in contravention to this Part's Rules. The Rules require that adjournment requests be uploaded to NYSCEF and emailed to the Part Clerk and the law clerks (see Rules, Part I [D] [3], supra at 1-2).
The instant case implicates an issue of whether a stipulation to adjourn a serious injury threshold summary judgment motion should routinely be approved by the court - even when it is the first request - when the plaintiff's medical records are presumably in her counsel's possession and she should have been examined on an ongoing basis if a claim is made, as it is here, that there is a permanent injury (see NYSCEF Doc No. 72, Bill of Particulars ¶ 20 ["Plaintiff sustained a serious injury... in that Plaintiff sustained a... permanent consequential limitation of use of a body organ or member...."]). This is so especially where the bill of particulars contains details of alleged injuries which were obviously quoted from medical records, as is the situation here (see id. ¶10). Also detailed in Plaintiff's bill of particulars are allegations that she underwent over approximately $100,000 of past medical services and will need more than approximately $150,000 in medical services (see id. ¶14). In order for these assertions to have been made, clearly there were existent medical records at least as of February 15, 2021, when the bill of particulars was executed. Certainly, from then and until now (, two and a half years later), the records could have been properly authenticated.
"The granting of an adjournment for any purpose rests within the sound discretion of the Supreme Court (see Matter of Steven B., 6 N.Y.3d 888, 889 [2006]; Miglionico v Homeowners' Assn., Inc., 184 A.D.3d 818, 819 [2020]). Further, the court has the discretion to grant an extension of time to file opposition papers 'upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed' (CPLR 2004; see Leader v Steinway, Inc., 186 A.D.3d 1207, 1209 [2020]). 'In exercising its discretion, a court may consider such factors as the length of the delay, the reason or excuse for the delay, and any prejudice to the party opposing the motion' (Kim & Bae, P.C. v Sunki Lee, 173 A.D.3d 990, 992 [2019]; see Tewari v Tsoutsouras, 75 N.Y.2d 1, 12 [1989])." (U.S. Bank v Sokolof, 201 A.D.3d 839, 840-841 [2d Dept 2022].
"It is not an improvident exercise of discretion to deny an adjournment where the need for such a request is based on the movant's failure to exercise due diligence (see Matter of Breaker v ACS-Kings, 129 A.D.3d 715, 716 [2015]). [¶] In addition,' "[w]hile a court has the discretion to grant an extension of time to file opposition papers, it must be upon a showing of good cause (see CPLR 2004). The delinquent party must offer a valid excuse for the delay"' (Tec-Crete Tr. Mix Corp. v Great Am. Ins. Co. of NY, 167 A.D.3d 806, 807 [2018], quoting Adotey v British Airways, PLC, 145 A.D.3d at 750; see Kubicsko v Westchester County Elec., Inc., 116 A.D.3d 737, 739 [2014])." (Miglionico v Homeowners' Assn., Inc., 184 A.D.3d 818, 820 [2d Dept 2020].)
The Court may reject an insufficiently detailed excuse for not filing opposition papers timely (see Laurent v Belony, 193 A.D.3d 712 [2d Dept 2021] [plaintiffs' undetailed and conclusory explanation of their expert's delay in providing an expert affidavit necessary to oppose the defendants' motion]; Harrison v Toyloy, 174 A.D.3d 579 [2d Dept 2019] [plaintiff's attorney failed to identify the expert by name and did not provide any details concerning purported "reasonable efforts" to contact the expert]; Kisiletskiy v Pena, 153 A.D.3d 800 [2d Dept 2017] [motion made March 26, 2012, court denied unopposed motion on Aug. 10, 2012]).
There is no automatic right to a stipulated adjournment of a motion: "Stipulations of adjournment of the return date made by the parties shall be in writing and shall be submitted to the assigned judge. Such stipulation shall be effective unless the court otherwise directs." (22 NYCRR 202.8[d] [emphasis added].)
Courts possess the authority to enforce their rules (see Basie v Wiggs, 173 A.D.3d 1127 [2d Dept 2019]; Appleyard v Tigges, 171 A.D.3d 534 [1st Dept 2019]; Maddus v Bowman, 12 A.D.2d 626 [2d Dept 1960]; Brick&Mortar LLC v Momo Sushi Inc., 79 Misc.3d 1239 (A), 2023 NY Slip Op 50838(U) [Sup Ct, Kings County 2023] [rule requiring submission of referenced electronically-filed documents as exhibits to motion papers]; Stipa Sprecase v Tenreiro, 2023 WL 3972435 [Sup Ct, NY County 2023] [rules requiring motions to reargue or renew be made by order to show cause]; Latorre v Rahman, 2022 NY Slip Op 32044(U) [Sup Ct, NY County 2022]; Bedingfield v Dairymade Farms, Inc., 46 Misc.2d 146, 148 [Sup Ct, Suffolk County 1965] ["That rule is consistent with the inherent power of the Court to control its business."]; Scully v Jefferson Truck Renting Corp., 43 Misc.3d 48 [Sup Ct, Kings County 1964]; cf. Crawford v Liz Claiborne, Inc., 11 N.Y.3d 810 [2008]).
The purpose of the Individual Assignment System (IAS) is "to give trial judges greater control over their cases and to move cases to disposition more expeditiously" (Basetti v Nour, 287 A.D.2d 126, 134 [2d Dept 2001]). The orderly disposition of cases is important for the efficient operation of our judicial system (see id. at 134). Moreover, compliance with individual part rules is necessary to implement these policy goals. This Court reviews motions in advance of the date for oral argument (see Matter of Court's Discharge of Its Responsibilities Pursuant to 22 NYCRR § 100.3 (D) (2), (3), ___ Misc.3d ___, 2023 NY Slip Op 23258 [Sup Ct, Kings County 2023]). The purpose for this Court's rules governing adjournments is to avoid wasting this Court's time in reviewing motions in advance when they will not be heard due to an adjournment. If an adjournment is sought, the reason for it must be disclosed in sufficient detail so that the Court can determinate whether to prepare a review of the motion. The failure to disclose the reason for an adjournment frustrates the Court's preparation. Here, not only did the failure to inform the Court of the reason for a requested adjournment by 5:00 p.m. of the third day prior to the November 3, 2023 motion calendar date frustrate the efficient preparation for considering the motion, it displayed a cavalier attitude toward the Court's organized procedures.
Further, in the interests of having this simple motion determined, this Court elected to do so on submission pursuant to 22 NYCRR 202.8-f and IAS Part 2 Rules, Part I [C] [6] ("All motions presumptively are to be argued in person unless the Court informs the parties at least two days in advance that it has made a sua sponte determination that a motion will be determined on submission.)." Notice was sent to the parties today that the motion would be determined on submission.
Preparing opposition to a defendant's serious injury threshold summary judgment motion is not that difficult provided that counsel has maintained contact with the client and her treating physicians. Once an action for personal injuries resulting from a motor vehicle has been commenced, it behooves counsel to maintain said contact. Therefore, once the inevitable serious injury threshold summary judgment motion is filed by the defendant, preparing opposition papers entails a review of the file and another round of consultations with the client and the physicians. In the case at bar, there is only one plaintiff and one set of defendants. This reduced the amount of work needed to be performed by counsel. There are no multiple IMEs to deal with. Defendant submitted one IME report and one doctor reviewed the MRI films. Plaintiff already underwent an EBT so counsel should have been prepared to respond to arguments regarding it in Defendant's papers. If contact had been maintained with the client and the physicians, preparing responsive papers would not have been difficult. The motion is not that complex.
Parties in litigation unfortunately endured delays resulting from the Covid pandemic. With the court system endeavoring to clear up the backlog, unjustified non-Covid related delays should not be countenanced. Cases must move along and dispositive motions such as the instant one seeking summary judgment dismissing the complaint should be resolved one way or the other - either the motion will be granted and the case dismissed or the motion will be denied and the case will continue moving toward trial - in order to make way for other existing cases needing motion determinations and for new cases which are entering the system.
No compelling reason has been set forth in either the initial or second stipulation for adjourning Defendants' motion for summary judgment. The routine submission of incomplete stipulations of adjournments is not acceptable.
The within motion, Sequence #4, shall remain calendared for November 3, 2023. The stipulations dated and filed are rejected. The motion will be determined on submission. The Clerk shall enter this in the Court's records and annotate them further that the stipulations were not in conformity with IAS Part 2's rules.