Alvarez v Suburban Propane Partners, L.P.

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Alvarez v Suburban Propane Partners, L.P. 2019 NY Slip Op 34442(U) May 6, 2019 Supreme Court, Westchester County Docket Number: Index No. 64935/2016 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. INDEX [*FILED: 1] WESTCHESTER COUNTY CLERK 05/07/2019 11:41 AMNO. NYSCEF DOC. NO. 46 64935/2016 RECEIVED NYSCEF: 05/07/2019 To commence the statutory time period for appeals as of right [CPLR 55 IJ(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 - COMPI;,IANCE PART --------------------------------------. ------------. -------------------------x EDUARDO ALVAREZ and CAROLINA REYES, Plaintiff, DECISION & ORDER Index No. 64935/2016 Motion Seq. No. 3 -againstSUBURBAN PROPANE PARTNERS, L.P. and ANTHONY S. LARKIN, Defendants. ---. --------- ----- - -- -- ---------- ----- --- --- --------- --- --- --- - --- -- - ------ --X LEFKOWITZ, J. The following papers were read on this cross,motion by defendants, pursuant to CPLR 3212, for an order granting them partial summary judgment. Notice of Cross Motion; Affidavits in Support; Exhibit A; Affidavit in Support; Exhibits A thr~ugh B; Memorandum of Law Affirmation in Opposition NYSCEF File On or about October 7, 2016, plaintiffs commenced this action against defendants seeking to recover damages for personal injuries sustained as a result of a motor vehicle accident between plaintiff Eduardo Alvarez and a truck being operated by defendant Anthony S. Larkin and owned by defendant Suburban Propane Partners, L.P. Issue was joined on or about December 21, 2016, when defendants served their answer. Following the completion of discovery, the Supreme Court (Lefkowitz, J.), entered a Trial Readiness Order on January 11, 2019. Pursuant to the Trial Readiness Order, "[a]ny motion for summary judgme,nt by any party must be served via NYSCEF within45 days following the filing of the Note oflssue; opposition papers must be served via NYSCEF within 30 days of service of motion papers; and reply papers, if any, must be served via NYSCEF within 10 days following service of any opposition papers." On January 31, 2019, plaintiffs filed their Note of Issue. Plaintiffs filed their motion for summary judgment on Mai-ch 18;2019 (Motion Seq. No. 2). On April 18, 2019, more than 77 days after plaintiffs filed their Note oflssue, defendants cross-moved for summary judgment. 1 of 4 INDEX [*FILED: 2] WESTCHESTER COUNTY CLERK 05/07/2019 11:41 AMNO. NYSCEF DOC. NO. 46 64935/2016 RECEIVED NYSCEF: 05/07/2019 Prior to addressing the merits of the parties' arguments, the court ·must address the issue of timeliness and proper motion practice. 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. In February 2016, the Chief Judge of the State of New 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 bn "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 that 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 hour~ 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 CiviliPractice Law and Rules and a culture in which cases can linger for years without re.solution. 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. 2 2 of 4 INDEX [*FILED: 3] WESTCHESTER COUNTY CLERK 05/07/2019 11:41 AMNO. NYSCEF DOC. NO. 46 64935/2016 RECEIVED NYSCEF: 05/07/2019 \ For these reasons, it is important to adhere to the position we declared a decade ago that "[i]fthe 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]). Pursuant to the D~M 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 fortyfive (45) days following the filing of the Note oflssue." (DCM Rule II.D, available at https://www.nycourts.gov/courts/9jd/diffCaseMgmt/DCM _protocol _)une30_ 17 .pdf)_. The trial readiness order entered on January 11, 2019, also directs that "[afuy motion for summary judgment by any party must be served viaNYSCEF within 45 days following the filing of the~ Note oflssue" (emphasis added). The DCM Protocol further provided in bold type a~ follows: Counsel are cautioned that untimely motions cannQt 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 45day time period pursuant to this protocol and the Trfal Readiness Order shall result in the denial of the untimely motion or cross-motion. 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. Accordingly, based on the Part Rules and the Trial Readiness Order, all summary judgment motions were due within 45 days of the filing of the note of issue. Here, defendants' motion was filed on April 18 1 2019, 77 days after plaintiffs filed their note of issue on January 31, 2019. Therefore, defendants' motion for summary judgment is untimely. 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 goodcause. ·"In the absence of a showing of good cause for the delay in filing a motion for iummary 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. ofSouthold, 54 AD3d 899, 901 [2d Dept 2008]; see Brill v City ofNew York, 2 NY3d 648, 652 [2004]). Here, defendants failed to demonstrate, much less allege, any cause for the delay (see generally Brill v City ofNew York, 2 NY3d 648 [2004]; see Gonzalez v Zam Apt. Corp., 11 AD3d 657, 658 [2d Dept 2004]). With regard to proper cross motion practice, CPLR 2215 states, inter alia, that "[a]t least three days prior to the time at which the motion is noticed to be heard, or seven days prior to such time if demand is properly made pursuant to subdivi~ion (b) of rule 2214, a party may serve upon the moving party a notice of cross-motion demanding relief, with or without supporting papers." As explained in Kershaw v Hospital for Special Surgery (114 AD3d 75, 87 [1st Dept 2013] 3 3 of 4 INDEX [*FILED: 4] WESTCHESTER COUNTY CLERK 05/07/2019 11:41 AMNO. NYSCEF DOC. NO. 46 64935/2016 RECEIVED NYSCEF: 05/07/2019 [internal quotation marks omitted]), "[a] cross motion is merely a motion by any party against the party who made the original motion, made returnable at the same time as the original motion." Here, defendants' cross motion seeking summary judgment was untimely and is a clear example of dilatory tactics which adversely impact the timely disposition of cases. Rather than filing their motion within the applicable period, defendants waited until after their adversaries · filed their motion to file their own motion. Defendants did not file their motion by the deadline set forth in the trial readiness order which provided that "any motion for summary judgment by any party must be served within forty-five (45) days following the filing of the Note oflssue." Having missed the deadline, they also failed to provide any explanation (let alone good cause) for the delay (see generally Brill v City ofNew York, 2 NY3d 648 (2004]; see Gonzalez v Zam Apt. Corp., 11 AD3d 657,658 (2d Dept 2004]). Defendants cannot seek summary judgment at such a late date by simply denominating their motion as a cross motion (see Sanchez v Metro Bldrs. Corp., 136 AD3d 783, 785 [2d Dept 2016]; Kershaw v Hosp.for Special Surgery, 114 AD3d at 88). 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. In view of the foregoing, it is hereby ORDERED that defendants' motion (Seq. No. 3) is denied as untimely; and it is further ORDERED that plaintiffs' motion (Seq. No. 2) is transferred to an IAS Part for determination on the merits; and it is further ORDERED that defendants shall serve a copy of this Decision and Order, with notice of entry, upon all parties within five days of entry. The foregoing constitutes the Decision and Order of this Court. Dated: White Plains, New York M.£tvt TO: cc: }a , 2019 All counsel by NYSCEF Compliance Part Motion Clerk 4 4 of 4

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