Drumgold v AVA Serv. Corp.

[*1] Drumgold v AVA Serv. Corp. 2012 NY Slip Op 52016(U) Decided on October 22, 2012 Supreme Court, Kings County Schack, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 22, 2012
Supreme Court, Kings County

Cheryl Drumgold, Plaintiff,

against

AVA Service Corp. FREDDY LIZARDO GUZMAN and GERALD GARVEY, Defendants.



10009/11



Plaintiff

Hedva Wellerstein, Esq.

Wellerstein and Associates

Brooklyn NY

Defendant AVA:

Cary Nokowitz, Esq.

Baker McAvoy Morrisey & Moskovits, P.C.

Brooklyn NY

Defendant G Garvey

Steven Sphocleous, Esq.

Law Offices of Robert Tusa

Brooklyn NY

Arthur M. Schack, J.

In this personal injury action, the instant motion by defendants AVA SERVICE CORP. [*2]and FREDDY LIZARDO GUZMAN for summary judgment and dismissal of the instant action, pursuant to CPLR Rule 3212 (a), against plaintiff CHERYL DRUMGOLD and the so-called "cross-motion" of defendant GERALD GARVEY, which is actually a motion and not a "cross-motion," for summary judgment and dismissal of the instant action, pursuant to CPLR Rule 3212 (a), against plaintiff CHERYL DRUMGOLD are both denied as untimely. Both the instant motion and instant "cross-motion" violate CPLR Rule 3212 (a) and Kings County Supreme Court Uniform Civil Term Rule C (6). CPLR Rule 3212 (a) states: Time; kind of action. Any party may move for summary judgment in any action, after issue has been joined; provided however, that the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made nolater than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown. [Emphasis added]

Kings County Supreme Court Uniform Civil Term C (6), effective January 2, 2010, and derived from the prior Kings County Supreme Court Uniform Civil Term Rule 13, states: Post Note of Issue Summary Judgment Motion:In cases where the City of New York is a defendant and is represented by the Tort Division of the Corporation counsel's office, summary judgement motions may be made no later than 120 days after the filing of a Note of Issue. In all other matters, including third party actions, motions for summary

judgment may be made no later than 60 days after he filing of a Note of Issue. In both instances the above time limitations may onlybe extended by the Court upon good cause shown. See CPLR 3212 (a). [Emphasis added].

Discussion

In the instant tort action, defendants AVA SERVICE CORP. and FREDDY LIZARDO GUZMAN made the instant summary judgment motion on July 9, 2012, 67 days post note of issue. Defendants AVA SERVICE CORP. and FREDDY LIZARDO GUZMAN did not make any showing of good cause for leave of this I.A.S. Part for an extension of time to make the instant summary judgment motion more than 60 days beyond the May 3, 2012 filing of the note of issue. Defendant GERALD GARVEY made the instant "me-too" summary judgment "cross-motion" on September 18, 2012, 138 days post note of issue. Defendant GERALD GARVEY did not make any showing of good

cause for leave of this I.A.S. Part for an extension of time to make the instant summary judgment motion more than 60 days beyond the May 3, 2012 filing of the note of issue.

The Court in dealing with the "60-day rule," without any good cause shown for an extension for making a summary judgment motion cannot extend the deadline for a summary judgment motion. Last year, the Court in Bivona v Bob's Discount Furniture of

NY, LLC (90 AD3d 796 [2d Dept 2011]), instructed at 796: "In the absence of a showing of good cause for the delay in filing a motion for summary judgment, the court has no discretion to entertain even a meritorious nonprejudical motion for summary judgment.'" Greenpoint Props, Inc. v Carter, 82 AD3d 1157, 1158 [*3][2011], quoting John P. Krupski & Bros., Inc. v Town Bd. of Southold, 54 AD3d 899, 901 [2008]; see Brill v City of New York. 2 NY3d 648, 652 [2004]). Here, the defendant failed to establish "good cause" for the delay in serving and filing its motion [CPLR 3212 [a]). Accordingly, the Supreme Court properly denied, as untimely, the defendant's motion for summary judgment dismissing the complaint (see Brill v City of New York. 2 NY3d at 652; Castillo v Valente, 85 AD3d 1080 [2011]; Riccardi v CVS Pharmacy, Inc., 60 AD3d838 [2009]).

The instant motion and instant "cross-motion" are late and untimely.

Failure to comply with court-ordered time frames must be taken seriously. It cannot be ignored. There are consequences for ignoring court rules and time frames. The Court of Appeals, in Gibbs v St. Barnabas Hosp., 16 NY3d 74, 81 [2010], instructed: As this Court has repeatedly emphasized, our court system is dependent on all parties engaged in litigation abiding by the rules of proper practice (see e.g. Brill v City of New York, 2 NY3d 748 [2004]; Kihl v Pfeffer, 94 NY2d 118 [1999]). The failure to comply with deadlines not only impairs the efficient functioning of the courts and the adjudication of claims, but it places jurists unnecessarily in the position of having to order enforcement remedies to respond to the delinquent conduct of members of the bar, often to the detriment of the litigants they represent. Chronic noncompliance with deadlines breeds disrespect for the dictates of the Civil Practice Law and Rules and a culture in which cases can linger for years without resolution. Furthermore, those lawyers who engage their best efforts to comply with practice rules are also effectively penalized because they must somehow explain to their clients why they cannot secure timely responses from recalcitrant adversaries, which leads to the erosion of their attorney-client relationships as well.

"Litigation cannot be conducted efficiently if deadlines are not taken seriously, and we make clear again, as we have several times before, that disregard of deadlines should not and will not be tolerated (see Miceli v State Farm Mut. Auto Ins. Co., 3 NY3d 725 [2004]; Brill v City of New York, 2 NY3d 748 [2004]; Kihl v Pfeffer, 94 NY2d 118 [1999]) [Emphasis added]." (Andrea v Arnone, Hedin, Casker, Kennedy and Drake, Architects and Landscape Architects, P.C., 5 NY3d 514, 521 [2005]). "As we made clear in Brill, and underscore here, statutory time frames like court-order time frames (see Kihl v Pfeffer, 94 NY2d 118 [1999]) are not options, they are requirements, to be taken seriously by the parties. Too many pages of the Reports, and hours of the courts, are taken up with deadlines that are simply ignored [Emphasis added]." (Miceli at 726-726).

Therefore, the instant summary judgment motion and instant summary judgment "cross-motion" are both denied. (See Mayorquin v AP Development, LLC, 92 AD3d 849 [2d Dept 2012]; Bivona v Bob's Discount Furniture of NY, LLC, supra; Deberry-Hall v County of Nassau, 88 AD3d 634 [2d Dept 2011]; Castillo v Valente, supra; Polanco v Creston Avenue Properties, Inc., 84 AD3d 1337 [2d Dept 1011]; Riccardi v CVS Pharmacy, Inc., supra; Finger v Saal, 56 AD3d 606 [2d Dept 2008]; Kennedy v Bae, 51 AD3d 980 [2d Dept 2008]; McNally v Beva Cab Corp., 45 AD3d 820 [2d Dept 2007]; Davidson v Brisman, 40 AD3d 574 [2d Dept 2007]; Giordano v CSC Holdings, Inc., 29 AD3d 948 [2d Dept 2006]; Bevilacqua v City of New York, [*4]21 AD3d 340 [2d Dept 2005]; Milano v George, 17 AD3d 644 [2d Dept 2004]; First Union Auto Finance, Inc. v Donat, 16 AD3d 372 [2d Dept 2005]).

With respect to the "cross-motion" for summary judgment by defendant GERALD GARVEY, it is actually a motion. A "cross-motion" is made in response to an adversary's motion. The instant GARVEY "cross-motion" is not in response to any motion by plaintiff DRUMGOLD, but is a "me-too" motion in support of the summary judgment motion by co-defendants AVA SERVICE CORP. and FREDDY LIZARDO GUZMAN. (See Siegel, NY Prac § 249 [5th ed]). "A cross motion is an improper vehicle for seeking affirmative relief from a nonmoving party (see, CPLR 2215)." (Mango v Long Island Jewish-Hillside Medical Center, 123 AD2d 843, 844 [2d Dept 1986]. However, "[s]uch a technical defect may be disregarded where, as here, there is no prejudice, and the plaintiff had ample opportunity to be heard on the merits of the relief sought." (Volpe v Canfield, 237 AD2d 282, 283 [2d Dept 1997]). (See Dramboukas v Samlidis, 84 AD3d 719, 721 [2d Dept 2011]; Kleeberg v City of New

York, 305 AD2d 549, 550 [2d Dept 2003]).

Conclusion

Accordingly, it is

ORDERED, that the motion by defendantsAVA SERVICE CORP. and FREDDY LIZARDO GUZMAN for summary judgment and dismissal of the instant action, pursuant to CPLR Rule 3212 (a) and the cross-motion by defendant GERALD GARVEY for summary judgment and dismissal of the instant action, pursuant to CPLR Rule 3212 (a), are both denied as untimely.

This constitutes the Decision and Order of the Court.

ENTER

___________________________

HON. ARTHUR M. SCHACKJ. S. C.