Panicker v Northfield Sav. Bank

[*1] Panicker v Northfield Sav. Bank 2006 NY Slip Op 50880(U) [12 Misc 3d 1153(A)] Decided on April 4, 2006 Civil Court, Richmond County Straniere, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 4, 2006
Civil Court, Richmond County

Geevarghese Panicker, Plaintiff,

against

Northfield Savings Bank, Defendant.



3034/05



Plaintiff: Geevarghese Panicker, Pro Se. Counsel for Defendant: Eric Horn, Esq., Connors & Connors, P.C., 766 Castleton Avenue, Staten Island, NY 10310 (718) 442-1700

Philip S. Straniere, J.

The defendant, Northfield Savings Bank, moves for an order dismissing the plaintiff's complaint pursuant to CPLR 3211 or, in the alternative, for an order granting summary judgment pursuant to CPLR 3212.

The plaintiff opposes the motion on the grounds that both motions are untimely and further contends that the defendant is not entitled to summary judgment due to the presence of triable issues of fact.

The plaintiff commenced this action to recover monies due to alleged unauthorized electronic transfers from his account maintained at Northfield Savings Bank.

The defendant contends that the plaintiff did not timely notify the defendant, pursuant to its disclosure policies, that the transfers were unauthorized and is therefore not liable for the withdrawals. The plaintiff alleges that he properly notified the bank when he discovered that the transfers were made, and that he is therefore entitled to be reimbursed for the

amounts withdrawn from his account. The plaintiff contends that he has raised sufficient questions of fact to warrant a trial of the action. [*2]

1. Is the defendant's summary judgment motion timely?

The plaintiff commenced this action on March 31, 2005 with the service of a summons and complaint. Issue was joined on April 19, 2005 with the filing and service of the answer by the defendant. Since the plaintiff was acting pro se at the time the action was commenced, the action was placed on the trial calendar upon the defendant's filing the answer with this Court, first appearing on the calendar on May 3, 2005. Because the plaintiff was pro se, the rules of the Civil Court did not require that a Notice of Trial be filed in order to obtain a calendar number to place the action on the trial calendar.

In determining the issue of whether the defendant's summary judgment motion is timely, it is necessary to identify the triggering event that initiates the time period within which the defendant may make the motion.

It would appear that CPLR 3212 clearly identifies that triggering event by stating that 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." In 1996, the legislature amended this section to add the 120 day limit, undoubtedly in an effort to stem the tide of summary judgment motions, often made on the "eve of trial." However, even after the amendment established the 120 day maximum, motions continued to abound, resulting in a plethora of creative legal arguments and judicial holdings which sought to rely upon and interpret the statute's remaining exception that a late motion may be made "with leave of court on good cause shown."

In employing a Machiavellian approach, lawyers who believed that they could benefit from summary judgment argued that "good cause" is established when one makes a prima facie showing that one can prevail on the motion, no matter how late the motion or the reason for the delay--that is, if one can win the motion then one should be allowed to make the motion. In addition, the often tantalizing notion that deciding even a late motion would contribute to overall judicial economy by expeditiously resolving the case did not sufficiently provide the nexus to "good cause".

With the Courts and legal community still struggling with lingering questions, the New York Court of Appeals responded with its decision in Brill v City of New York, 2 NY3d 648 in an apparent response to the clarion call for a definition of "good cause." At the outset, the Court noted in Brill that despite the legislature's efforts to impose limits on the timeliness of the motion, "...summary judgment motions persisted, with the statutory good cause' requirement a new litigation battleground." The Court pointed to the disparity among the courts, with some concluding that good cause requires an initial showing of the reason for the delay, while other courts holding good cause is established with a showing that the motion has merit. In resolving the dispute, the Court 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" (ibid at page 652). [*3]

In the face of CPLR 3212 and Brill, one could conclude that the defendant's motion is untimely. Although Civil Court does not utilize Notes of Issue to calendar cases, but rather Notices of Trial, one could argue that the filing of the Notice of Trial is tantamount to a filing of a Note of Issue. However, the analysis becomes more complex where, as in this case, a Notice of Trial has not been filed because one party has appeared pro se. The motion was dated and served on August 25, 2005. Since a motion is deemed made when it is served (see Siegel, Practice Commentaries McKinney's Consolidated Laws of NY Book 7B CPLR C2211:4), and the defendant served the motion on the plaintiff on August 25, 2005 (128 days after the date that the action was assigned a calendar number in lieu of filing a notice of trial), the motion would be considered untimely if the date the action was calendared is the triggering event for the window period of the summary judgment motion. However, this is where the first of several conundrums is created.

In speaking of the filing of a Note of Issue, the legislature, perhaps unwittingly, ignored the process by which actions are calendared in the Civil Court. In Supreme Court, the action is placed on the calendar by filing a Note of Issue, which releases the sand in the statutory hour glass for the summary judgment motion. However, in Civil Court, there are several ways in which to calendar an action, and they vary depending upon whether a litigant is represented by counsel or has elected to proceed pro se. The rules governing the calendaring of actions in the Civil Court may be found in Civil Court Act § 1301 and McKinney's 2006 New York Rules of Court § 208.17 ( 22 NYCRR § 208.17). The following various scenarios may occur in the Civil Court, thereby resulting in different practices with regard to the timeliness of a summary judgment motion:

A. Where both parties are represented by counsel:

In those cases where both sides are represented by counsel, the Court rules provide that an action will be calendared upon the filing of a Notice of Trial, and the payment of a fee. This will generate a calendar number and the action will take its place on the trial calendar. It is a generally accepted practice that in this instance, the parties have 120 days from the filing of the Notice of Trial [FN1] within which to initiate a summary judgment motion, although the CPLR makes no reference to a Notice of Trial, but only to a Note of Issue. The argument may be made that the legislature's specific reference to a Note of Issue limits the time rules of summary judgment to those Courts that accept Notes of Issue, thereby eliminating the Civil Court from its purview. "It is a general rule of construction that omission in a statute cannot be supplied by construction, omissions are to be remedied by the Legislature and not by the Court." (Statutes §363).

B. Where the plaintiff is pro se and the defendant is represented by counsel, and has interposed an answer:

In those instances where the plaintiff has commenced the action as a pro se, having served and filed the summons and complaint, the action is immediately placed on the trial calendar [*4]when the defendant (by counsel) files the answer with the Court. Notably, because the plaintiff is pro se, no Notice of Trial is required to be filed and the calendar fee is waived. This raises the question as to when does the "clock start ticking" as to the defendant's time, or for that matter, the plaintiff's time within which to make a summary judgment motion. Since a Notice of Trial has not been filed, one could argue that the window period is opened upon the filing of the answer. That would be appropriate for the defendant, who is in control of the filing and obviously has the knowledge of the date of the filing; however, it presents a challenge for the plaintiff, who is not aware of the date that the answer is filed until the plaintiff receives a card from the Clerk's office notifying the plaintiff of the first trial date, which is typically three to four weeks after the filing of the answer. This would effectively shorten the plaintiff's time within which to make the motion, thereby creating disparate treatment.

Another alternative, in this instance, would be to suggest that both parties' time within which to make the motion is triggered from the first calendar appearance, thereby creating the same time period for both parties. However, this alternative ignores the dictates of CPLR 3212 and in fact creates a judicial amendment to the statute by identifying a triggering event neither explicitly nor implicitly established by the legislature in enacting either the statute or its amendments. In addition, it creates a disparity with those instances in which both parties are represented by counsel and the time for the summary judgment starts to run upon the filing of the Notice of Trial.

C. Where the plaintiff is represented by counsel and the defendant is pro se and has served and filed an answer.

In this instance, the action is placed on the calendar when the defendant has filed the answer, and the same procedures would apply as previously discussed where the defendant was represented by counsel. Again, a disparity of treatment would be created, since there is no requirement that a Notice of Trial be filed.

D. Where the plaintiff and the defendant are pro se litigants and the defendant has served and filed an answer.

In this instance, just as in the previous scenarios, the action is calendared for trial when the defendant files the answer with the Court. Again the conundrum is created as to when the defendant or the plaintiff's time within which to make the summary judgment should start to run, if at all, creating the same disparity of treatment we have already noted.

E. Where the plaintiff is represented by counsel and the defendant fails to answer the complaint.

In this instance, the normal procedures of default judgments would apply, and usually the plaintiff is not required to calendar the action, unless an inquest or a motion for a default judgment is required. Summary judgment motions are not typically made in such instances.

An examination of the rules governing the calendaring of actions in the Civil Court leads to as many questions as to answers regarding the timeliness of summary judgment motions in the Civil Court. CCA § 1301, entitled "How cause brought on for trial; notice of trial" provides that [*5]"... upon joinder of issue the clerk shall place the case upon a general calendar. Where any party appears in person, the clerk shall fix a date for trial...Where all parties appear by attorney any party may serve a notice on the others fixing a date for trial... and shall file such notice with proof of service thereof, with the clerk, who shall thereupon place the case on the calendar for trial. The case shall be set down for trial as provided for by the rules." This section speaks to a notice of trial only in those situations where all parties are represented by counsel, therefore making it clear that the Clerk shall put a case on the calendar upon joinder of issue where one side is pro se without the necessity of filing a notice of trial. While this section appears to suggest that where both sides are represented by counsel, they may file a notice of trial, thereby not making such service mandatory, it further directs that such notice shall be filed, with proof of service with the Clerk. In addition, the section refers to the rules, presumably the Uniform Trial Court Rules. A perusal of the rules in search of guidance for the calendaring of pro se and attorney represented cases leads only to § 208.17 entitled "Notice of Trial Where All Parties Appear by Attorney." The rule details the information which must be contained in the Notice of Trial referred to in CCA 1301. It also provides that the "...clerk shall not place any matter on a trial calendar unless there has been compliance with the rule by the party seeking to place the matter on the calendar"(22 NYCRR 208.17(b)) thereby dictating that where all parties are represented by counsel, a notice of trial must be filed in order to obtain a trial date.

There is no concomitant provision in the rules for the calendaring of actions where pro se litigants are on either or both sides of the action, making it clear that in the instance of such litigants, their cases are placed on the calendar without a Notice of Trial, and upon the filing of the answer, as dictated by CCA §1301 and as we have discussed in the individual scenarios and as provided in the rules. As such, it would seem that without a Notice of Trial, such litigants would have un unspecified time within which to make a summary judgment, except as limited by the decision of a judge assigned to the case.

Notably, the Uniform Civil Rules for the Supreme Court, 22 NYCRR § 202.21, entitled Note of Issue and Certificate of Readiness, provides that "no action or special proceeding shall be deemed ready for trial...unless there is first filed a notice of issue accompanied by a certificate of readiness, with proof of service." This section sets forth an unequivocal condition precedent to the calendaring of the action, and unlike the Civil Court rules or Civil Court Act, provides no differentiation or exception for cases where attorneys represent all parties or one or both parties appear pro se. As a result, when considering this rule in tandem with CPLR 3212's reference to a Note of Issue, undoubtedly the time limit set forth in the statute applies to Supreme Court actions; however, its application to Civil Court actions is more uncertain.

There are numerous instances where by both explicit statutory direction or extrapolation and inference, the rules of the CPLR have been applied and extended to the Civil Court. CCA § 2102 specifically provides that "[t]he CPLR and other provisions of law relating to practice and procedure in the supreme court, notwithstanding reference by name or classification to any other court, shall apply in this court as far as the same can be made applicable and are not in conflict with this act." While one could assume that the time provisions of CPLR 3212 can be easily [*6]applied to the Civil Court, since a Notice of Trial can be equated with a Note of Issue, it cannot be so easily applied and in fact may be in conflict with that part of the Civil Court Act which applies to the calendaring of pro se actions.

When considering the various differences in calendering actions in Civil Court, and CPLR 3212's singular reference to the filing of the Note of Issue as the triggering event within which to make a summary judgment motion, we can only conclude that the statute's application does not pertain to Civil Court. To conclude otherwise, would countenance the absurd position that only those litigants in Civil Court who have retained lawyers on both sides, and who have paid fees to file the Notice of Trial are governed by the statute's time constraints, while others, in varying cases, and who have not paid the fees, may have unlimited time to make a summary judgment motion. Thus it would seem that in this instance, those who have legal representation have greater procedural constraints than those who proceed pro se. While this Court agrees that self represented litigants often require additional assistance by Court personnel, whether it be through providing forms, interpreters, information access and procedural assistance, all of which ultimately inure to the benefit of the entire legal system, it does not follow that such assistance should result in disparate treatment, particularly where greater limits are imposed upon certain classes, in this case, actions in which both the plaintiff and the defendant are represented by counsel. This disparity is particularly significant in light of the number of actions that are filed where at least one party is pro se as compared to those where both parties are represented by counsel. A review of the 2004 statistics for this county reveals that approximately 50 % of all calendared actions have Notices of Trial files, with fees paid, while the remaining approximately 50% involve at least one pro se party, and therefore are calendared without a Notice of Trial or payment of a fee. Consequently, in approximately 50% of the cases, litigants may have unlimited time periods within which to make a summary judgment, while the remaining 50 %, having secured the representation of counsel, are potentially bound by the 120 day rule.

Accordingly, due to the disparity among the methods in which an action is calendared in Civil Court, and the fact in certain instances a Notice of Trial is not filed, the Court finds that the time provisions of CPLR 3212 regarding the 120 day limitation are not applicable to actions commenced in the Civil Court.

Based on the foregoing principles, the defendant's motion for summary judgment is deemed timely.

In seeking summary judgment dismissing the complaint the defendant contends that since the plaintiff did not timely notify the defendant of its alleged unauthorized withdrawals from the plaintiff's account, the defendant is not liable to the plaintiff. In opposing the motion, the plaintiff has sufficiently demonstrated that there exists a triable issue of fact regarding the timeliness of his notification to the defendant of unauthorized electronic transfers from the plaintiff's account and compliance with the Electronic Fund Transfers Act (see Zuckerman v City of New York , 49 NY2d 557). Accordingly, the defendant's motion for summary judgment is denied. [*7]

The defendant's motion pursuant to CPLR 3211 to dismiss the plaintiff's complaint is denied. The plaintiff's complaint, together with the support proffered in opposition to the defendant's motion, sufficiently demonstrates a cause of action regarding the alleged failure of the defendant to reverse the withdrawals for unauthorized electronic transfers from the plaintiff's bank account.

Because the plaintiff has retained an attorney since the action was commenced, the action will be placed on the trial calendar upon the proper service and filing of a Notice of Trial and the payment of any fees.

The foregoing constitutes the Decision and Order of the Court.

Court Attorney to notify both sides of this Decision/Order.

Dated: April 4, 2006_____________________________

Staten Island, NY HON. PHILIP S. STRANIERE

Judge, Civil Court

A P P E A R A N C E S Footnotes

Footnote 1:The substance and format of the Notice of Trial, used in the Civil Court to calendar most actions, mirrors the information contained in the Note of Issue.