Sheerin v Consolidated Edison, Inc.

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Sheerin v Consolidated Edison, Inc. 2017 NY Slip Op 33519(U) December 12, 2017 Supreme Court, Westchester County Docket Number: Index No. 63665/2015 Judge: Alan D. Scheinkman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: WESTCHESTER COUNTY CLERK 12/13/2017 07:19 AM NYSCEF DOC. NO. 138 INDEX NO. 63665/2015 RECEIVED NYSCEF: 12/13/2017 To commence the statutory time period for appeals as of right (CPLR 55 l 3(a)], you are advised to serve a copy of this order ' with notice of entry upon all parties. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHE STER-COM PLIANCE PART ---------------------------------------------------------------------x PATRICIA SHEERIN & WILLIAM SHEERIN ' Plaintiffs, DECISIO N & ORDER 63665/2015 Index No. Order Date: Dec. 12, 2017 Motion Seq.: 4 -againstCONSOLI DATED EDISON, INC., CON EDISON OF NEW YORK, INC., PERSICO CONTRAC TING & TRUCKIN G, INC, and WHITE OAK COOPERA TIVE HOUSING CORP., Defendants . ---------------------------------------------------------------------x SCHEINK MAN, J. The following papers were read on this motion by defendant Consolidat ed Edison pursuant to CPLR 3212 for summary judgment: Notice of Cross Motion, Affirmatio n in Support, Exhibits A-C Burkenfeld Affidavit in Support, Exhibits A-C Upon the foregoing papers, the motion is decided as follows: As most recently enumerated in the Decision and Order of this Court (Ruderman , J.) dated January 4, 2017, plaintiffs commence d this action to recover damages for personal injuries allegedly sustained on May 23, 2014, when Patricia Sheerin tripped on a sidewalk appurtenan t to 60 White Oak Street in New Rochelle, New York, owned by defendant White Oak Cooperativ e Housing Corp. The pleadings allege that defendant Consolidat ed Edison and/or defendant Persico Contracting & Trucking, Inc., caused a defect in the sidewalk that proximatel y caused these injuries. As relevant here, all defendants joined issue, the parties completed discovery, and plaintiffs filed a Note oflssue and Certificate of Readiness on August 3, 2017. Thereafter, defendant Persico filed a Notice of Motion for summary judgment on September 5, 2017 (Motion Sequence #2); defendant White Oak filed a Notice of Motion for summary judgment on September 18, 2017 (Motion Sequence #3); and defendant Consolidat ed Edison filed a Notice of Cross Motion for summary judgment on September 27, 2017 (Motion Sequence #4). For the reasons that follow, the motion by Consolidat ed Edison is denied as untimely. In 2009, a new Differentia ted Case Manageme nt (DCM) Protocol was introduced in Westcheste r County Supreme Court to ensure effective case managemen t. The DCM Protocol was designed to ensure the timely prosecution of cases from inception to trial and facilitate [* 1] 1 of 4 FILED: WESTCHESTER COUNTY CLERK 12/13/2017 07:19 AM NYSCEF DOC. NO. 138 INDEX NO. 63665/2015 RECEIVED NYSCEF: 12/13/2017 settlements. As implemented, the DCM Protocol limits adjournments and delays and requires that the parties actively pursue the prosecution and defense of actions. Deadlines are enforced in Westchester County Supreme Court civil cases pursuant to the DCM Protocol. In February 2016, the Chief Judge of the State of New York, Hon. Janet Difiore, announced the "Excellence Initiative," which seeks to achieve and maintain excellence in court operations by eliminating backlogs and delays. The Excellence Initiative relies on "Standards and Goals" as the benchmark for the timely resolution of cases. The Ninth Judicial District is committed to carrying out the Chief Judge's Excellence Initiative and delivering justice to all that enter our courts in a timely and efficient manner. The Court of Appeals explained the importance of adhering to court deadlines as follows: "As we made clear in Brill, and underscore here, statutory time frames - like court-ordered time frames - 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" (Miceli v State Farm Mutual Automobile Insurance Company, 3 NY3d 725, 726-727 [2004] [internal citations omitted]). The Court of Appeals again stressed the importance of adhering to deadlines as follows: "As this Court has repeatedly emphasized, our court system is dependent on all parties engaged in litigation abiding by the rules of proper practice. 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 attorneyclient relationships as well. For these reasons, it is important to adhere to the position we declared a decade ago that '[i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity"' (Gibbs v St. Barnabas Hosp., 16 NY3d 74, 81 [2010] [internal citations omitted]). [* 2] 2 of 4 T hf': <:1 re C:PT, 2004 ermits a court. in the exercise of its discretion, to grant an FILED: WESTCHESTER COUNTY CLERK 12/13/2017 07:19 AM NYSCEF DOC. NO. 138 INDEX NO. 63665/2015 RECEIVED NYSCEF: 12/13/2017 extension of time ~xed by statute, rule or court order, upon a showing of good cause. "In the absence of a s~ow1~g of good cause for the delay in filing a motion for summary judgment, 'the ~ourt has no d1scret10n to entertain even a meritorious non-prejudicial motion for summary Judgment"' (Greenpoint Props, Inc. v Carter, 82 AD3d 1157, 1158 [2d Dept 2011], quoting John P. Krupski & Bros., Inc. v Town Bd. of Southold, 54 AD3d 899, 901 [2d Dept 2008]; see Brill v City ofNew York, 2 NY3d 648,652 [2004]). . Pursu3?t to ~,he DCM_ Protocol Part R~les with respect to post-Note oflssue summary Judgment mot10ns, any mot10n for summary Judgment by any party must be made within fortyfive (45) days following th(? filing of the Note oflssue." The Trial Readiness Order to which plaintiffs stipulated contains similar language. In addition, the Part Rules state in bold-face type: "Counsel are cautioned that untimely motions cannot be made timely by denominating such as cross-motions. The failure of a party to serve and file a motion or cross-motion within the 45-day time period pursuant to this protocol and the Trial Readiness Order shall result in the denial of the untimely motion or crossmotion." Accordingly, summary judgment motions were due on September 18, 2017, 45 days after plaintiffs filed the Note oflssue on August 3, 2017. Based on that timetable, the summary judgment motions by Persico (dated September 5, 2017) and White Oak (dated September 18, 2017) are timely, but the summary judgment motion by Consolidated Edison (dated September 27, 2017) is untimely. Consolidated Edison did not seek an extension, or offer any reason why this motion is untimely and why the lateness should be excused, or even acknowledge in the moving papers that the motion is untimely. Consolidated Edison having failed to come forward with good cause for the delay, this Court is left to conclude that nothing precluded Consolidated Edison from timely filing this motion (see generally Brill v City of New York, 2 NY3d 648 [2004]; Gonzalez v Zam Apt. Corp., 11 AD3d 657,658 [2d Dept 2004]), and that there is no basis for this Court, on its own initiative, to extend the deadline pursuant to CPLR 2204. This Court also notes that standards and goals for civil cases in which a Note of Issue is filed is one year from the filing of the Note oflssue. When summary judgment motions are delayed, the result inevitably would mean that either counsel would be rushed to trial or else the case would exceed standards and goals. While standards and goals are not immutable, and exceptions will always exist, compliance should be the norm, not the exception. If counsel are serious about their motions, they should make them on time or, if they believe that they cannot, they should apply timely for relief, setting forth the good cause required by statute and case law. Accordingly, it is hereby [* 3] ORDERED that the motion by Consolidated Edison (Sequence #4) is denied; and it is 3 of 4 FILED: WESTCHESTER COUNTY CLERK 12/13/2017 07:19 AM NYSCEF DOC. NO. 138 INDEX NO. 63665/2015 RECEIVED NYSCEF: 12/13/2017 ORDERED that counsel for plaintiffs shall serve a copy of this Decision and Order with Notice of Entry on all defendants within seven days of entry. The foregoing constitutes the Decision and Order of this Court. - Dated: White Plains, New York December 12, 201 7 HON. ALAN TO: . SCHEINKMAN, J.S.C. Henderson & Brennan Attorneys for Plaintiffs 222 Mamaroneck A venue White Plains, New York 10805 ByNYSCEF Rita C. Maron, Esq. Attorneys for Defendant Consolidated Edison of New York, Inc. 4 Irving Place New York, New York 10003-3598 ByNYSCEF Kaufman Borgeest & Ryan Attorneys for Defendant Persico Contracting & Trucking, Inc. 200 Summit Lake Drive Valhalla, New York 10595 By NYSCEF Lynch Schwab & Gasparini, PLLC Attorneys for Defendant White Oak Cooperative Housing Corp. 1441 Route 22, Suite 206 Brewster, New York 10509 ByNYSCEF [* 4] 4 of 4 A

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