Okere v Brois

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Okere v Brois 2019 NY Slip Op 34178(U) December 10, 2019 Supreme Court, Westchester County Docket Number: 62735/2018 Judge: Joan B. Lefkowitz 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: 1] WESTCHESTER COUNTY CLERK 12/11/2019 09:45 AM NYSCEF DOC. NO. 72 INDEX NO. 62735/2018 RECEIVED NYSCEF: 12/11/2019 To commence the statutory ti1J1e 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 WESTCHESTER- COMPLIANCE PART -----------------------------------------------------------------------------x HENRY C. OKERE and KAREN PORTER, DECISION AND ORDER Plaintiffs, Index No. 62735/2018 -againstMotion Date: Nov. 15, 2019 Seq. No. 4 THEODORE BROIS and HELEN BROIS, Defendants. ------------------------------------------------------------------------------x LEFKOWITZ, J. The following papers were read on this cross-motion by defendants for an order of summary judgment dismissing the complaint and for such other and further relief as may be just, proper and equitable. Notice of Cross-Motion; Affirmation in Support; Affidavits (3) in Support; Exhibits 1-4 Affirmation in Opposition; Exhibits A-C Affirmation in Reply NYSCEF File Upon the foregoing papers, the cross-motion is determined as follows: Plaintiff commenced this action to enforce a contract for the sale of a residential premises located in Armonk, New York. As relevant here, a trial readiness order was entered on August 27, 2019 (NYSCEF Doc. No. 38). Plaintiff filed a note of issue and certificate ofreadiness on September 19, 2019 (NYSCEF Doc. No. 39). On October 31, 2019, plaintiffs moved for summary judgment. On November 8, 2019, defendants filed this cross-motion. Prior to addressing the merits of the parties' arguments, the court must address the issue of timeliness. In 2009, a new Differentiated Case Management (DCM) Protocol was introduced in Westchester County Supreme Court to ensure effective case management. The DCM Protocol was designed to ensure the timely prosecution of cases from inception to trial and facilitate 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. 1 of 4 [*FILED: 2] WESTCHESTER COUNTY CLERK 12/11/2019 09:45 AM NYSCEF DOC. NO. 72 INDEX NO. 62735/2018 RECEIVED NYSCEF: 12/11/2019 In February 2016, the Chief Judge of the State ofNew York, Hon. Janet Difiore, announced the "Excellence Initiative" for the New York State Unified Court System. The Excellence Initiative 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 in a timely and efficient manner to all who enter our courts. The Court of Appeals has explained the importance of adhering to court deadlines as follows: "As we made clear in Brill, and underscore here, statutory time frames--like courtordered 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 ~tate 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 attorney-client 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]). CPLR 2004 permits the court, in the exercise of its discretion, to grant an extension of time fixed by statute, rule or court order, upon a showing of good cause. "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 nonprejudicial 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]). Pursuant to the current DCM Protocol Part Rules with respect to post-note of issue summary judgment motions, "any motion for summary judgment by any party must be made within forty-five (45) days following the filing of the Note of Issue" (DCM Rule II.D, available at https://www.nycourts.gov/courts/9jd/diffCaseMgmt/DCM_protocol.pdf). In addition, the Part Rules state in bold-face type: 2 2 of 4 [*FILED: 3] WESTCHESTER COUNTY CLERK 12/11/2019 09:45 AM NYSCEF DOC. NO. 72 INDEX NO. 62735/2018 RECEIVED NYSCEF: 12/11/2019 "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 cross-motion" · (DCM Rule II.D [emphasis in original]). While the DCM Protocol authorizes limited extensions of return dates on summary judgment motions, it invites no extension of the time for making such motions. Pursuant to the DCM protocol, defendants' motion for summary judgment was due 45 days after plaintiff filed the Note of Issue on September 19, 2019. While plaintiffs' motion was filed timely, defendants' cross-motion for summary judgment was filed on November 8, 2019, and is therefore untimely. Moreover, defendants did not provide any reason for the delay in moving for summary judgment, let alone good cause to waive the DCM protocol or otherwise extend the time for filing a summary judgment motion. Defendants' untimely cross-motion is a clear example of the dilatory tactics that adversely impact the timely disposition of cases. Rather than filing their own motion within the applicable period, they waited until after their adversaries filed a motion before filing their motion. Defendants did not file the motion by the deadline set forth in the trial readiness order, which provided that"[a]ny motion for summary judgment by any party must be served via NYSCEF within 45 days following the filing of the Note oflssue" (NYSCEF Doc. No. 38 [emphasis added]). Standards and goals for civil cases in which a note of issue is filed is one year from the filing of the note of issue. If the making of summary judgment motions is delayed for months, this will inevitably mean that either counsel will be rushed to trial or else the case will go over standards and goals. The situation is compounded by adjournments of such motions, particularly where the adjournments are repeated and the motions were already made late. 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 for relief, setting forth the good cause for granting it. What they cannot do is avoid the necessity for showing good cause by simply waiting until some other party moves within the time allowed and then take advantage of that party by denominating their untimely motion as a "cross-motion." It has been held that untimely cross-motions may be considered by the Court, in the · exercise of its discretion, where a timely motion for summary judgment has been made on nearly identical grounds (see Williams v Wright, 119 AD3d 670 [2d Dept 2014]). However, regardless of whether the grounds are identical, the case law does not mandate that the Court must entertain such untimely cross-motions, especially where, as here, to do so would result in the circumvention of the Part Rules established by the Court and reward non-compliance with court deadlines, without good cause. Therefore, defendants' cross-motion is denied as untimely (see Finger v Saal, 56 AD3d 606 [2d Dept 2008]). Any papers submitted in support of the cross-motion may be considered in opposition to plaintiffs' motion. 3 3 of 4 [*FILED: 4] WESTCHESTER COUNTY CLERK 12/11/2019 09:45 AM NYSCEF DOC. NO. 72 INDEX NO. 62735/2018 RECEIVED NYSCEF: 12/11/2019 In view of the foregoing, it is hereby ORDERED that defendants' cross-motion (sequence#4) is denied as untimely; and it is further, ORDERED that plaintiffs' motion is referred to an IAS Part for determination on the merits; and it is further ORDERED that plaintiffs shall serve a copy of this Decision and Order, with notice of entry, upon all other parties within five days of entry. The foregoing constitutes the Decision and Order of this Court. Dated: To: White Plains, New York December /0 , 2019 All Counsel by NYSCEF 4 4 of 4

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