Bronakoski v Bronakoski

[*1] Bronakoski v Bronakoski 2020 NY Slip Op 20164 Decided on June 10, 2020 Supreme Court, Monroe County Dollinger, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on June 10, 2020
Supreme Court, Monroe County

Lisa V. Bronakoski, Plaintiff,

against

Ronald S. Bronakoski, Defendant.



11/11121



Leonard Rosner, Esq.

Attorney for Plaintiff

Rochester, New York

Maureen A. Pineau, Esq.

Attorney for Defendant

Rochester, New York
Richard A. Dollinger, J.

Better late than never? But, what if even "late" never happens?

In this matter, a former wife, granted a judgment against her former husband more than five year ago, never filed an order granting the judgment but only filed the judgment and now seeks to enforce it against real property that her former husband seeks to sell.

The answer turns on a post script to a half-decade-old Court decision — the simple phrase "submit order" — that standing alone fails to require adherence to New York's rules on when orders must be submitted to courts that resolve matters by written decision.

In this matter, a former husband ("husband") seeks to vacate a judgment rendered in 2015 for more than $23,000 because the former wife ("wife"), who filed the judgment, never prepared or recorded an order from this Court's decision that granted her the judgment.

The fact are undisputed. In November, 2014, this Court issued a decision which awarded the wife a judgment for unpaid maintenance and other expenses, including attorneys fees. The Court directed that those sums be paid within 30 days of the decision and, if not, then a judgment could be filed and interest would accrue. At the conclusion of the decision, the Court wrote: "submit order." No order was submitted after the decision. Instead, wife's then counsel later filed a judgment for the amount ordered by the Court. The judgment remained in the clerk's office for more than five years until, the husband, seeking to sell property in this County which [*2]was encumbered by the judgment, discovered the judgment and brought this application. The wife — even after this application was filed — never filed an order from the November 2014 decision.

The husband, in seeking to vacate the judgment, argues that the Court's use of the phrase "submit order" at the conclusion of its November 2014 decision triggers the requirements of 22 NYCRR 202.48, a court rule which provides that if a court directs an order to be "settled or submitted on notice" then it must be submitted within 60 days for signature by the Court or the motion would be deemed abandoned. The Court of Appeals in Funk v Barry 89 NY2d 364, (1996) held that "the 60-day period [in 22 NYCRR 202.48] applies only where the court explicitly directs that the proposed judgment or order be settled or submitted for signature." See also Walter S. v. Kim S., 862 NYS 2d 819 (Sup.Ct. Delaware Cty 2008). In Funk v. Barry, the Court reviewed the rationale underlying 22 NYCRR 202.48:

By its plain terms, section 202.48 (a) speaks to the circumstances where the court's decision expressly directs a party to submit or settle an order or judgment. When a decision ends with the directive to "submit order," the court is generally directing the prevailing party to "draw the order and present it to the judge who looks it over to make sure it reflects the decision properly, and then signs or initials it" (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2220:4, at 170). This procedure typically calls for no notice to the opponent (id.).A directive to "settle," by contrast, "is reserved for more complicated dispositions, such as orders involving restraints or contemplating a set of follow-up procedures" (id.). Because the decision ordinarily entails more complicated relief, the instruction contemplates notice to the opponent so that both parties may either agree on a draft or prepare counter proposals to be settled before the court.

89 NY2d at 367. Subsequently, in Farkas v. Farkas, 11 NY3d 300 (2008), the Court of Appeals held that the use of the phrase "settle judgment" — standing alone — did not trigger the requirements of 22 NYCRR 202.48 and a judgment derived from the order was not invalid because the entry of the judgment was a ministerial recording function that is separate and distinct from the procedure of obtaining the court's signature on a proposed judgment. Id at 309.

Taking lead from the Court of Appeals, New York's courts have held that the 60-day rule only applies when "further court involvement in the drafting process is contemplated." Shamshovich v. Shvartsman, 110 AD3d 975, 976-77 (2d Dept 2013)( the 60-day rule of 22 NYCRR 202.48 is inapplicable because no judicial action was necessary before entry of the money judgment even though judgment was submitted 10 years after award). In later decisions, the appeals courts have declined to apply the 60-day submission or abandonment rule unless the court previously directed that the order be "settled or submitted on notice." Jie Wen Zhou v Honghui Kuang, 2020 NY App. Div. LEXIS 3034 (2d Dept 2020)(because the Supreme Court's decision at the conclusion of the trial did not expressly direct that the judgment be settled or submitted on notice, the provisions of 22 NYCRR 202.48 do not apply even though the judgment was entered 30 months after the court granted the judgment); Matter of Ishakis v Lieberman, 150 AD3d 1114 (2d Dept 2017)(since the Court's decision and order in the prior appeals did not expressly direct that the judgment be settled on notice, the provisions of 22 NYCRR 202.48 did [*3]not apply).

This Court notes that some decisions by the Second Department suggested that if the decision "expressly directed" that an order be "submitted," then the subsequent judgment might be subject to vacatur. HSBC Bank USA N.A., v. Moley, 145 AD3d 970) (2d Dept 2016). However, the prevailing view in the Second Department — which this Court adopts — is found in Pol v. Ashirov, 131 AD3d 523 (2d Dept 2015) and Matter of Matthew L., 85 AD3d 917 (2d Dept 2011). In Pol v. Ashirov, the trial court concluded its opinion with the words "settle order." The appeals court held that 22 NYCRR 202.48 does not apply where the court merely directs a party to "submit order" or judgment without expressly directing that the order or judgment be submitted "on notice." 131 AD3d at 524. In Matter of Matthew L., the Second Department concluded:

There is no merit to the appellant's contention that the Supreme Court erred in entering the order appealed from because the proposed order sought to be settled was submitted in violation of the 60-day rule enunciated in 22 NYCRR 202.48 (a), as the decision upon which the order was entered merely contains the directive "submit order" and does not expressly direct that the proposed order was to be submitted on notice.

Id at 918.

In this matter, this Court notes that it has long adopted a practice that all of its decisions contained a final wording indicating that the parties need to "submit order on notice. 22 NYCRR 202.48." This decision will contain that precise language. However, the prior decision here, written six years ago, does not contain that language — "on notice" — and without it, 22 NYCRR 202.48 does not apply or require this Court to vacate the subsequent judgment.[FN1]

Finally, this Court notes that the husband here seeks a judgment based on the Court's November, 2014 decision. In that decision, the Court concluded that under the parties' agreement, the wife was required to contribute $3,000 annually to the cost of college education for the couple's children. Importantly, in its 2014 decision, this Court did not grant the husband judgment for any unpaid college expenses as two of his children were attending college at that time and had not graduated. The Court simply noted that the wife was obligated, under the agreement, to pay those costs as they accrued. There was no dollar amount or judgment awarded to the husband at that time. Now, the husband submits a statement of the colleges that his children attended and claims that they, together, attended college for 10 years. He seeks a judgment against his wife for the $30,000 in college costs. The wife argues that the husband's request for a college contribution is untimely, barred by waiver or collateral estoppel. This Court cannot, at this juncture, grant judgment for the amount sought by the husband and those claims are reserved for future disclosure and resolution.

The application to vacate the judgment because of non-compliance with 22 NYCRR 202.48 is denied. The husband's application to enforce the college contribution requirements is denied without prejudice and referred to a hearing. Any claims for attorneys fees by either party are denied without prejudice.

SUBMIT ORDER ON NOTICE. 22 NYCRR 202.48

Dated: June 10, 2020

_________________________________

Richard A. Dollinger, A.J.S.C. Footnotes

Footnote 1:In her response to the husband's application, the wife submits an affidavit from her-then counsel, explaining health reasons as his failure to file the order which the wife offers as evidence of "good cause" for the delayed filing and which would prevent an abandonment in this case. 22NYCRR 202.48(b). In view of this Court's holding, that issue is moot.