McNeil v Lund

[*1] McNeil v Lund 2009 NY Slip Op 51182(U) [23 Misc 3d 1138(A)] Decided on June 2, 2009 Supreme Court, Ulster County Zwack, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 2, 2009
Supreme Court, Ulster County

Penny McNeil, Plaintiff,

against

Robert Lund, Defendant.



05-2721



Law Offices of Goldstein & Handwerker, LLP

Attorneys For Plaintiff

Steven Goldstein, Esq., of counsel

280 Madison Avenue

Suite 1202

New York, New York 10016

Eisenberg & Kirsch

Attorneys for Defendant

Betsy N. Abraham, Esq., of counsel

25 Darby Lane

P.O. Box 715

Liberty, New York 12754

Henry F. Zwack, J.

This is a personal injury case arising out of a motor vehicle accident. Defendant moves by Order to Show Cause for reargument of a Decision and Order of this Court dated March 23, 2009 (Zwack, J.). That Decision and Order had granted summary judgment to defendant on all theories of "serious injury" under Insurance Law § 5102(d) save one: non-permanent injury or impairment for ninety of the first one hundred eighty days following the accident. The Decision and Order also contained a directive to defendant's counsel, under CPLR 2220, to assume responsibility for its filing and entry. Counsel timely complied with this directive with filing and entry on April 3, 2009.

The present Order to Show Cause was signed on May 15, 2009 — the very day on which it was submitted. This motion to reargue, then, was submitted forty-two (42) days after the date of filing and entry of the Decision and Order whose reargument is sought. This fact alone compels denial of the motion.[FN1]

CPLR 2221(d) provides, in pertinent part, "A motion for leave to reargue . . . 3. Shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. . . ." This provision, enacted in 1999 (L 1999 Ch 281) in response to the perceived need to provide a time limit for the bringing of motions to reargue, (see Kern v City of Rochester, 3 Misc 3d 948, 951, citing Office of Court Administration Memorandum in Support of CPLR Amendment), has been held to strict compliance (Id.). Indeed, even prior to the codification of the thirty-day rule, case authority had created an identical limitation period, with an exception for cases where courts were given discretion to consider untimely motions for leave to reargue where a timely notice of appeal had been filed but an appeal had not yet been perfected (see e.g. Bray v Gluck, 235 AD2d 72, 74 [3d Dept 1997]).

In the present case, defendant offers no explanation for the delay in bringing the present motion. In addition, the record is silent as to whether defendant has filed a timely notice of appeal of the original Decision and Order. Moreover, there is no suggestion advanced by defendant as to why the Court should exercise whatever discretion it may have to consider this untimely motion. Compounding the problem here is that this matter had long ago been given a trial date certain of June 8, 2009.

In any event, were the Court to address the merits of the present application, it would be denied nonetheless. Defendant has failed to demonstrate how the Court misinterpreted the facts or misapplied the law in its prior Decision and Order. Searching the record, the Court finds that defendant did not — and does not now — meet the prima facie burden of showing as a matter of law that plaintiff did not suffer significant impairment of physical condition for ninety of the one [*2]hundred eighty days immediately following the accident. On the contrary, the record is replete with conflicting evidence that will require the factual determination of a jury for resolution of this issue, as well as the issue of whether the accident was the proximate cause of plaintiff's impairment.

Accordingly, it is

ORDERED that defendant's motion is denied in all respects.

This constitutes the Decision and Order of the Court. All papers including this Decision and Order are returned to the attorneys for the plaintiff. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.

Dated:June, 2009

Troy, New York

Henry F. Zwack

Acting Supreme Court Justice Footnotes

Footnote 1: Inasmuch as defendant was the "prevailing party" for purposes of CPLR 2220, his counsel bore the responsibility for filing and entry. Since defendant is also the "aggrieved party" for purposes of this motion, it would be a hollow exercise indeed to require defendant to have served the order with notice of its entry in order to begin the running of the limiting time period under CPLR 2221(d)(3). Defendant had actual notice of entry of the order as of the moment his counsel offered it to the clerk for filing. Under ordinary circumstances, of course, the analysis would be different: the aggrieved party would not be deemed to have notice of the entry of the order until his adversary had served him with written notice of that entry.