| Crawford v Liz Claiborne, Inc. |
| 2007 NY Slip Op 08301 [45 AD3d 284] |
| November 1, 2007 |
| Appellate Division, First Department |
| Craig Crawford, Appellant, v Liz Claiborne, Inc., et al.,Respondents. |
—[*1] Orrick, Herrington & Sutcliffe LLP, New York City (Michael Delikat of counsel), forrespondents.
Order, Supreme Court, New York County (Jane S. Solomon, J.), entered September 20,2006, which granted defendants' motion for summary judgment dismissing the complaint,reversed, on the law and the facts, without costs, the motion denied, the complaint reinstated, andthe matter remanded for further proceedings before a different Justice.
Plaintiff commenced this action to recover damages against defendants, claiming that theydiscriminated against him on the basis of his sexual orientation. A note of issue was filed byplaintiff on May 15, 2006,[FN1]and motions for summary judgment, if any, were to be made within [*2]60 days, i.e., by July 14. The directive requiring summary judgmentmotions to be made within 60 days after the filing of the note of issue was issued in a preliminaryconference order, which referenced the local rule of the Supreme Court, New YorkCounty.[FN2]Defendants' motion for summary judgment dismissing the complaint was made when it wasserved on July 19. Defendants' counsel asserted that the motion was made after the deadlinebecause counsel had erroneously believed that she had 120 rather than 60 days to make themotion. Supreme Court, accepting counsel's excuse, considered the merits of the motion andgranted it.
The merits of an untimely motion for summary judgment may be considered by the courtonly if the movant demonstrates "good cause for the delay in making the motion—asatisfactory explanation for the untimeliness" (Brill v City of New York, 2 NY3d 648, 652 [2004]).Notwithstanding the hoary maxim ignorantia juris non excusat, defendants claim thattheir failure to appreciate that the motion was due within 60 days is a satisfactoryexplanation. We disagree.
Defendants' explanation for the delay is no more satisfactory than a perfunctory claim of lawoffice failure, an excuse that is insufficient to constitute good cause under CPLR 3212 (a) (see Breiding v Giladi, 15 AD3d435 [2005]; Connors, CPLR 3212[a]'s Timing Requirement for Summary JudgmentMotions, 71 Brook L Rev 1529, 1557-1558 [Summer 2006]; see also Greenfield vGluck, 2003 NY Slip Op 50729[U] [App Term, 2d & 11th Jud Dists 2003]; cf. Leader vMaroney, Ponzini & Spencer, 276 AD2d 194, 200 [2000], affd 97 NY2d 95 [2001][counsel's erroneous belief that original version of CPLR 306-b applied to action did notconstitute good cause to extend time for service under amended version of CPLR 306-b]).Notably, the local rules of Supreme Court, New York County and the rules of the individualjustices of that county are available, among other places, on line(http://www.nycourts.gov/supctmanh/UNIFRLrev.2007.507.pdf [last updated Feb. 28, 2006;accessed Oct. 18, 2007]). That the motion was only a few days late does not eliminate therequirement that good cause be demonstrated (see Milano v George, 17 AD3d 644 [2005]), and we are not free,for the sake of judicial economy, to consider an untimely summary judgment motion in theabsence of a showing of good cause (seeMiceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]; Brill,supra; Perini Corp. v City of NewYork [Department of Envtl. Protection], 16 AD3d 37 [2005]).
The dissent's contention that the "preliminary conference order does not appear to complywith CPLR 3212" and is not enforceable, and that defendants therefore had 120 days (as opposedto 60) following the filing of the note of issue to move for summary judgment, was not raised bydefendants. To the contrary, defendants tacitly concede that the 60-day period applies butcontend that the directive in the preliminary conference order requiring that all motions forsummary judgment be made within that period was ambiguous. This purported ambiguity, theargument goes, constitutes good cause for the belated motion. Since it is undisputed that theparties had 60 days to move for summary judgment following the filing of the note of issue, thedissent's unclear discussion on the issue of the timeliness of defendants' motion for summaryjudgment is inapposite.[FN3]
Moreover, the dissent's reliance on Vila v Cablevision of NYC (28 AD3d 248 [2006]) is misplaced.The Court in Vila found that good cause existed because a so-ordered stipulation betweenthe parties was ambiguous and did not clearly set forth the deadline for making summaryjudgment motions. Here, no ambiguity existed regarding the amount of time the parties had tomove for summary judgment following the filing of the note of issue; defendants simply failed tolearn the requirement of the expressly referenced local rule. Therefore, ignorance of theapplicable rule, not an ambiguity in the preliminary conference order, explains defendants' failureto make a timely motion (see Sutton v Lavezzo, 160 AD2d 292, 293 [1990] [counsel'signorance of rules of IAS part insufficient to excuse his failure to appear at calendar call]). Forsimilar reasons, the dissent's reliance on Cooper v Hodge (13 AD3d 1111 [2004] [mutual mistake regardingwhether trial court extended time to make summary judgment motions]) and Stimson v E.M. Cahill Co., Inc. (8AD3d 1004 [2004] [family emergencies of lawyer and his secretary requiring both of themto be out of the office on last day on which to serve summary judgment motion]) is misplaced.
At bottom, the principal issue on this appeal is whether good cause existed to allow SupremeCourt to consider a summary judgment motion that was untimely. In accord with the precedentthat we are required to follow, we conclude that good cause was lacking in this case. In soholding, we certainly do not "take[ ] away the discretionary power of [a] trial court to excuse a deminimis delay in [making a] summary judgment motion"; rather, we find that the de minimis[*3]delay in this case was not satisfactorily explained(Brill, 2 NY3d at 652 [" 'good cause' in CPLR 3212 (a) requires a showing of good causefor the delay in making the motion—a satisfactory explanation for theuntimeliness—rather than simply permitting meritorious, nonprejudicial filings,however tardy" (emphasis added)]; see Milano, 17 AD3d at 645 [summaryjudgment motion made one day past deadline needed to be supported by good cause for thedelay]). Although we have every confidence that the IAS court would preside fairly andimpartially over the matter upon remand, plaintiff raises a reasonable concern about theappearance of impartiality, and we accordingly direct that this matter be reassigned to anotherJustice. In so doing, contrary to the unfortunate statements by the dissent, we neither "reproach"nor "impugn[ ] the court's impartiality"; nor, of course, does our mere disagreement with the IAScourt's decision to consider the merits of the motion play any role in that direction. Finally,contrary to the dissent, our concern about the appearance of impartiality is not founded uponSupreme Court having decided a dispositive motion adversely to plaintiff.Concur—McGuire, Malone and Kavanagh, JJ.
Tom, J.P., and Williams, J., dissent in a memorandum by Tom, J.P., as follows: Thepreliminary conference order of Justice Jane Solomon provided that any dispositive motions shallbe made "per local rule." Due to counsel's confusion as to the applicable deadline, defendantscompleted service of their summary judgment motion several days after the deadline provided inher part rules. In deciding the motion, Justice Solomon acknowledged that the preliminaryconference order's reference to the "local rule" was unclear and found good cause for the minimaldelay. The court decided the motion on the merits and dismissed the complaint.
In reversing, the majority supersedes the motion court's exercise of discretion in finding goodcause for excusing a de minimis delay and, inexplicably, refers the matter to another justice. Inthe absence of any abuse of the considerable discretion afforded to the motion court in dealingwith pretrial business and issuing preliminary conference orders, the majority's dispositionconstitutes undue interference in the internal management of the trial part. Such officiousintermeddling intrudes upon the autonomy of the IAS court, interfering with its prerogative tocontrol its calendar and introducing uncertainty and confusion into its proceedings. Under thefactual circumstances of this case, the majority has, in essence, taken away the discretionarypower of the trial court to excuse a de minimis delay in filing a summary judgment motion.
The majority has demonstrated neither error nor abuse of discretion by the motion court inentertaining defendants' motion for summary judgment. The court's disposition of the motion isunassailable in view of plaintiff's failure to even attempt to establish the merits of his cause ofaction, and the reassignment of this case to another justice, without any valid explanation, ishighly unusual and wholly unwarranted. Accordingly, I dissent and would affirm the orderdismissing the complaint.
Plaintiff's note of issue was served on May 12, 2006 and thereafter filed in the Clerk's office.The copy contained in the record does not bear a filing stamp but, at oral argument, defendants'attorney represented to Supreme Court that it was filed the following Tuesday, stating, withoutcontradiction, "On May 16 a note of issue was in fact filed by plaintiff in this [*4]case." According to plaintiff's brief,[FN1]the rules of the IAS part required that "[a]bsent court order, post note of issue dispositive motionsshall be made within 60 days thereof." Thus, plaintiff told the motion court that, to be timelyunder this 60-day rule, "July 17 was the date the motion for summary judgment was due"(General Construction Law § 20).
Defendants' attorney, however, explained that he was of the understanding that service had tobe made in compliance with CPLR 3212 (a), that is, within 120 days of the note of issue. Onlywhen his associate called Justice Solomon's chambers on July 17 to clarify the scheduling of astatus conference did she learn that the deadline for serving defendants' summary judgmentmotion was that very same day. Counsel immediately mailed the notice of motion and handdelivered the supporting papers two days later on July 19, 2006.
Plaintiff brought an order to show cause on July 20, 2006 to strike the motion and supportingpapers as untimely. At a conference on July 24, the court denied the order to show cause anddirected that the issue of timeliness be raised in response to defendants' summary judgmentmotion.
Supreme Court disposed of defendants' motion in accordance with its decision on the recordat oral argument. By way of explanation of the "local rule" alluded to in the preliminaryconference order, Justice Solomon stated, "The local rule was a 60 day rule at some point, andbefore July the local rule was changed to track the CPLR, I believe because of Brill, but at thesame time that chan[g]e was published, so was my expansion or amendment of my part rules tomake it the 60 day rule." Thus, the record indicates that, prior to the date defendants submittedtheir motion, the local rule was amended to provide a 120-day time limit for dispositive motionswhile the court's part rule was changed to provide a 60-day limit.
Supreme Court rejected plaintiff's arguments as to untimeliness, finding that defendants had"shown good cause" for the delay in serving counsel's affirmation and other supporting papers. Itfurther commended defendants' extraordinary effort in serving, "within 48 hours of my localrule," supporting papers consisting of over 300 pages of affidavits and exhibits. As to plaintiff'sopposition, the court admonished him for failing to address the merits in response to thesummary judgment motion, as it had directed upon denying his order to show cause predicatedon the same narrow procedural ground. The court noted that it had never suggested the issue ofscheduling would be entertained without reaching the substance of the motion. The courtthereupon dismissed the complaint against all parties on the merits.
On appeal, plaintiff asserts that Supreme Court improperly entertained a late motion forsummary judgment (CPLR 3212 [a]). He states, "The Court's Uniform Rules [sic] requirethat '[a]bsent court order, post note of issue dispositive motions shall be made within 60 daysthereof.' " Plaintiff again contends that "any dispositive motion Respondents intended to file wasdue on or before July 17, 2006." The record includes a copy of defendants' notice of motionpostmarked on that date; however, it is undisputed that supporting papers were served by handtwo days later.[FN2][*5]
A court has discretion to entertain "a motion for summaryjudgment made more than 120 days after the filing of a note of issue" (Gonzalez v 98 MagLeasing Corp., 95 NY2d 124, 129 [2000]). "A motion court's exercise of discretion indetermining that the moving party has established good cause for the delay will be overturnedonly if there has been an improvident exercise of discretion" (Pena v Women's Outreach Network, Inc., 35 AD3d 104, 108[2006]). Good cause for untimeliness "requires a showing of good cause for the delay in makingthe motion—a satisfactory explanation for the untimeliness—rather than simplypermitting meritorious, nonprejudicial filings, however tardy" (Brill v City of New York, 2 NY3d648, 652 [2004]).
Given the evident confusion surrounding whether the allusion to "local rule" in thepreliminary conference order referred to the court's part rule, the former 60-day local rule or the120-day rule that became effective before the motion was submitted in July 2006, the courtproperly found that defendants had established good cause for late service. The court concludedthat the two-day delay in completing service by delivering the supporting affidavits and exhibitswas de minimis, and providently exercised its discretion to consider the motion on its merits. Thefailure of the preliminary conference order to set a date by which the motion was to be made, itsconfusing reference to an unidentified "local rule," the court's failure to advise defendants of its60-day motion requirement and defendants' uncontroverted failure to learn of the requirementuntil the very last moment convincingly establish good cause for filing a late motion (seeBrill, 2 NY3d at 653 [" 'good cause' means good cause for the delay"]; see also Vila v Cablevision of NYC, 28AD3d 248, 249 [2006] [ambiguity constitutes requisite good cause]; Cooper v Hodge, 13 AD3d 1111[2004] [confusion as to grant of extension satisfactorily explained delay]; Stimson v E.M. Cahill Co., Inc., 8AD3d 1004 [2004] [family emergencies excused two-day delay]).
While the parties contest whether or not service was timely under the applicable court or partrule, it should be observed that the court's preliminary conference order does not appear tocomply with CPLR 3212, a statute that this Court is obliged to apply irrespective of the absenceof any request by a party (CPLR 4511 [a]). The court's order is denominated "PreliminaryConference Order (202.8, 202.12 and 202.19 of the Uniform Rules)." The printed form containsa provision reciting, "Any dispositive motion(s) shall be made on or before," which the courtcompleted by inserting the words "per local rule." The order gives no indication of what is meantby the reference to the "local rule," the Uniform Rules for Trial Courts (22 NYCRR part 202)being the only rules mentioned in the document. None of the cited Uniform Rules involves thetiming of a dispositive motion and, as noted, no copy of the "local rule" at issue is contained in[*6]the record.[FN3]
CPLR 3212 (a) provides: "Time; kind of action. Any party may move for summary judgmentin any action, after issue has been joined; provided however, that the court may set a dateafter which no such motion may be made, such date being no earlier than thirty days afterthe filing of the note of issue. If no such date is set by the court, such motion shall bemade no later than one hundred twenty days after the filing of the note of issue, except with leaveof court on good cause shown." (Emphasis added.) It is clear that this procedural rule permits thecourt to "set a date," within certain limits, by which a summary judgment motion must be made.Consistent with CPLR 3212 (a), the printed preliminary conference order form used by the courtcalls for the entry of specific dates by which certain pretrial matters will be completed (physicalexamination, disclosure, impleader, compliance conference, dispositive motions and filing of anote of issue). The recitation in the preliminary conference order that any motion for summaryjudgment "shall be made on or before per local rule" does not "set a date," as required by thestatute.[FN4]
The record, by which this Court is bound (News Am. Mktg., Inc. v Lepage Bakeries, Inc., 16 AD3d 146, 149[2005]), does not contain the so-called "Uniform Rules" of the court referred to by plaintiff or theparticular "local rule" he seeks to enforce. Whatever the utility of the trial court's individualpractice in managing the business before it, such a parochial rule is not one of which this Court isrequired, or even permitted, to take judicial notice (CPLR 4511 [a], [b]; cf. Gair v Peck,6 NY2d 97, 108 [1959] [local Appellate Division rule not subject to attack as parochial]). Beforesupplanting the motion court's interpretation of its own practice with that urged by plaintiff, thisCourt must be confident defendants had sufficient notice of the rule so as to be held accountablefor its strict observance. Significantly, defendants assert, and plaintiff does not contest, that theyonly learned of the subject "local rule" (more accurately, part rule) from the motion court's lawclerk on the very day their time to submit a dispositive motion expired.
As a secondary consideration, it is necessary to determine whether the court's preliminary[*7]conference order has the requisite clarity to warrant its strictenforcement against a noncompliant party even assuming, for the sake of argument, that it mightbe deemed to "set a date" as required by CPLR 3212 (a). A court order is only enforceableaccording to its terms, and a party will not be found to be in defiance of an order absent conductthat violates a clear directive (see Watson v Esposito, 231 AD2d 512, 515 [1996],appeal dismissed 89 NY2d 915 [1996] [discovery]). The party must be aware of theaction required to be undertaken by a preliminary conference order before failure to comply withits terms can be the basis for sanction (see Halali v Evanston Ins. Co., 288 AD2d 260,261 [2001] [dismissal]).
The preliminary conference order's vague reference to an unidentified "local rule" did notclearly apprise defendants of the date by which their summary judgment motion had to be served.It should be noted that, even on appeal, plaintiff cites to no source where the subject rule mightbe located (cf. Weitzner v Elazarov, 189 Misc 2d 646 [2001] [uniform Civil Term rulespublished monthly in New York Law Journal]) and neither provides a copy of the part rule in therecord nor identifies the source of the "local rule" quoted in his brief.[FN5]Penalizing defendants for violation of a rule of which they had no notice raises due processconcerns, which the majority's pedestrian reference to ignorance of the law fails to consider.Supreme Court's determination of the purportedly late motion, in the sound exercise ofdiscretion, has the practical advantage of obviating any such concerns.
As to the merits, the record discloses that plaintiff had previously sought an order to showcause seeking to strike defendants' moving papers as untimely. In a short-form order, the courtstated, "OSC denied. Issue of timeliness of motion . . . should be raised in responsethereto." However, plaintiff made no response to the summary judgment motion, asserting at oralargument that, due to its purported untimeliness, "there is no need for us to respond." In thedecision read into the record, the court found good cause for defendants' failure to adhere to its60-day requirement and granted their motion on the ground that plaintiff failed to offer anyopposition on the merits. Upon a review of the record, the court noted that plaintiff hadperformed his various job assignments "amazingly well" until he began to abuse his power,finding nothing pretextual about the adverse action taken against him by defendants. The courtconcluded that the reason plaintiff had declined to oppose the merits of defendants' motion was"because there is no substantive opposition that could prevail."
Plaintiff does not dispute that defendants have established their prima facie entitlement tosummary judgment; nor does he dispute his failure to offer, in rebuttal, evidentiary proofsufficient to raise a material issue of fact requiring trial (Gonzalez, 95 NY2d at 129;Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Plaintiff nevertheless contendsthat because his opposition to defendants' motion was limited to procedural grounds, he must beaccorded the opportunity to oppose the motion on the merits. However, he offers no authority insupport of this proposition.
Unlike a motion to dismiss on the pleadings (CPLR 3211), a plaintiff opposing a summaryjudgment motion is obliged, upon penalty of dismissal, to submit an affidavit to rebut adefendant's evidentiary showing refuting his cause of action (Rovello v Orofino RealtyCo., 40 NY2d 633, 635 [1976]). As our rulings have made clear, where the movant hasestablished a prima facie case, a summary judgment motion unopposed on the merits will begranted, even in [*8]the face of an assertion that no opposition iswarranted (Access Capital v DeCicco, 302 AD2d 48, 53-54 [2002] [assertion of FifthAmendment privilege]). Because "the factual allegations of the moving papers, uncontradicted byplaintiff, are sufficient to entitle defendants to judgment dismissing the complaint as a matter oflaw," it is immaterial that plaintiff deliberately chose not to submit any opposition (Tortorellov Carlin, 260 AD2d 201, 206 [1999]).
It is apparent that plaintiff made a tactical decision to attack the motion on proceduralgrounds alone. It is equally apparent that his chosen stratagem ignored the well-known adage thatsummary judgment, being the procedural equivalent of a trial, requires the submission ofopposing evidentiary material sufficient to raise a material issue of fact requiring trial (seeCambridge Factors v Stagecoach Bus Sys., 155 AD2d 267, 268 [1989]). A procedural tacticthat results in an adverse determination affords no more basis for relief when pursued onsummary judgment rather than at trial. "While parties are accorded considerable latitude incharting their procedural course before the courts, they are bound by the consequences attendantupon the exercise of that prerogative" (Sean M. v City of New York, 20 AD3d 146, 150 [2005] [citationsomitted]).
Because Supreme Court's disposition of this matter was in all respects proper under thecircumstances, it is difficult to fathom the majority's insistence upon remittance for furtherproceedings before another judge. It is highly unusual for an appellate court to resort to such ameasure, which is normally reserved for extraordinary circumstances under which the lowercourt is clearly disregarding the law or the facts (see e.g. Matter of Thomas S. v RobinY., 209 AD2d 298 [1994], appeal dismissed 86 NY2d 779 [1995] [failure to issueorder of paternity to biological father]; Matter of Crawford, 153 AD2d 108 [1990][failure to terminate parental rights despite dearth of contact with child]). Although plaintiffcharges that the motion court was prejudiced against him because, among other things, itdismissed his complaint, that outcome was dictated by plaintiff's own decision to opposedefendants' motion on purely procedural grounds. In addition, the motion court's assessment thatplaintiff's case lacks merit finds substantial support in the record.
Plaintiff further complains that the court referred to him as an "idiot" during argument on adiscovery motion. In so doing, he misrepresents the record. The transcript of the proceedings, forwhich plaintiff was not present, reveals that the court had just reviewed an excerpt of a videotapeof plaintiff's examination before trial. Referring to plaintiff's unresponsiveness to questions (towhich counsel interposed, by his own admission, some 200 objections), the court stated, "I don'tunderstand how you think that performance could persuade a jury of anything because he soundslike a total mindless idiot." In the course of granting defendants' motion to require replies toquestions to which plaintiff failed to give responsive answers, the court stated, "Either the guycan answer questions or he can't bring a lawsuit." It is clear that what the court found idiotic wasthe incoherence of plaintiff's narrative, as elicited by counsel. Even granting plaintiff'scharacterization of the court's statement as intemperate, a single such remark does not constitutea sufficient basis to conclude that plaintiff was denied due process, which is all that the lawrequires (see People v McElveen, 234 AD2d 228, 232 [1996], lv denied 89 NY2d1097 [1997]).
Remittance of this matter for reassignment to a different judge is an affront to the motioncourt, which did nothing to warrant reproach. The majority's disagreement with the motioncourt's decision, even if legally supportable (see Pena, 35 AD3d at 108), is not a plausiblereason for impugning the court's impartiality. Indeed, the majority purports to have "everyconfidence [*9]that the IAS court would preside fairly andimpartially over the matter upon remand." They find only that the record suggests an "appearanceof partiality." If deciding a dispositive motion adversely to a party is to be regarded as anappearance of partiality warranting reassignment to another judge, no court will ever be able togrant summary judgment without fear that, at the whim of an appellate panel, it will be subjectedto criticism that its adjudication suggests impropriety (see United States v Helmsley, 760F Supp 338, 344 [1991], affd 963 F2d 1522 [2d Cir 1992] [if disqualification could bebased on unfavorable rulings, "our system of justice would become difficult, if not impossible, toadminister"]; Markus v United States, 545 F Supp 998, 1000 [DC NY 1982], affd742 F2d 1444 [2d Cir 1983] ["It would open the way to 'judge shopping' "]). The majority'sdisposition will have a chilling effect on the resolution of motions seeking summary dismissal ofunmeritorious actions, to the detriment of the efficient administration of justice.
Accordingly, the order should be affirmed.
Footnote 1: "[P]apers that are required to befiled are considered to have been filed when they are received by the office with which. . . they are to be filed" (Coty v County of Clinton, 42 AD3d 612, 613-614 [2007][emphasis added], quoting Castro vHomsun Corp., 34 AD3d 616, 617 [2006]). The date-stamped note of issue was marked"received" on May 15 in the Trial Support Office of the New York County Clerk's Office. Whilea date-stamped copy of the note of issue was not in the record on appeal, we may refer to thecontents of the Supreme Court file and take judicial notice that the note of issue was received onMay 15 (see McClelland v Palmer, 186 AD2d 1079, 1080 [1992] [court took judicialnotice that a stipulation discontinuing an action was filed in the Niagara County Clerk's Office];Lobotsky v Lobotsky, 103 AD2d 799 [1984] [court took judicial notice of filing dates ofpapers in divorce action filed with Westchester County Clerk's Office]; see also Graffeo vBrenes, 85 AD2d 656, 657 [1981]; Prince, Richardson on Evidence § 2-209 [Farrell11th ed]). The dissent apparently means to criticize our taking of judicial notice of the filing dateof a paper in the court file by referring to it as a "sua sponte enlargement of the record." Ofcourse, the record is "enlarged" whenever a court takes judicial notice of a fact.
Footnote 2: On the date the preliminaryconference order was executed by Justice Solomon, April 11, 2005, the local rules of SupremeCourt, New York County required a motion for summary judgment to be made within 60 days ofthe filing of the note of issue (NY County Sup Ct, Civ Branch, Uniform Rules of Justices,http://www.courts.state.ny.us/supctmanh/uniform_rules.htm [eff July 3, 2001] [last updated June16, 2005; accessed Oct. 18, 2007] [rule 17 "Motions for Summary Judgment . . .Unless specified otherwise in a particular case, pursuant to CPLR 3212 (a) all motions forsummary judgment must be made no later than 60 days after the filing of the note of issue"]).Rule 17 was subsequently modified to provide a 120-day period to move for summary judgmentunless the court directed otherwise (NY County Sup Ct, Civ Branch, Uniform Rules ofJustices, http://www.nycourts.gov/supctmanh/UNIFRLrev.2007.507.pdf [effective April 17,2006] [last updated Feb. 28, 2006; accessed Oct. 18, 2007]). Pursuant to her own part rule, whichwent into effect at the same time the local rule was modified, Justice Solomon required summaryjudgment motions to be made within 60 days of the filing of the note of issue (id.["Absent court order, post note of issue dispositive motions shall be (made) within 60 days"]).Accordingly, at all times motions for summary judgment in this case were due within 60 days ofthe filing of the note of issue.
Footnote 3: The dissent seems to be of theview that the printed preliminary conference order was so vague and the local rule so obscurethat defendants had insufficient notice that they were required to make any summary judgmentmotion within 60 days of the filing of the note of issue. Indeed, the dissent goes so far as to statethat "[p]enalizing defendants for violation of a rule of which they had no notice raises dueprocess concerns." This statement ignores the undisputed fact that the preliminary conferenceorder expressly stated that dispositive motions were to be made "on or before per local rule," andthus defendants were obligated to find out what the local rules required.
Footnote 1: While citing the "Local Rules ofthe Justices, p. 10," plaintiff neither includes a copy of the part rules in the record nor identifiesthe source of the quoted rule.
Footnote 2: The majority has obtained acopy of the note of issue filed in the County Clerk's Office bearing the date stamp of May 15,2006 and therefore concludes that the motion was due one business day earlier—Friday,July 14 not Monday, July 17. Because what appears to be a one-day delay in serving the notice ofmotion is immaterial to my position, I will refrain from commenting on the propriety of a suasponte enlargement of the record. However, I will adhere to the facts as argued to the motioncourt and recounted in the appellate briefs (see Fehlhaber Corp. v State of New York, 65AD2d 119, 131 [1978], lv denied 48 NY2d 604 [1979] ["Appeals must be decided on thecontent of the record"]; see also People ex rel. Martinez v Walters, 99 AD2d 476, 477[1984], appeal dismissed 63 NY2d 727 [1984] ["we are bound by the record ascertified"]).
Footnote 3: Use of the term "local rule" torefer to a part rule is inapt. A local rule is required to comply with Rules of the Chief Judge (22NYCRR) part 9 (Uniform Rules for Trial Cts [22 NYCRR] 202.1 [c]), which provides forpublication in the Official Compilation of Codes, Rules and Regulations and in the StateRegister. However, part 9 expressly exempts from its operation "instructions issued by individualjudges governing the hearing of cases pursuant to the Individual Assignment System." (22NYCRR 9.1 [a].)
Footnote 4: If, as the majority insists, thepreliminary conference order's reference to "local rule" presents no ambiguity, defendants'motion was timely. A "local rule" is a rule promulgated by Supreme Court (22 NYCRR part 9),not a judge's part rule, and the subject local rule in effect at the time defendants brought theirmotion indisputably provided for service under CPLR 3212 (a), that is, within 120 days after thefiling of the note of issue.
Footnote 5: It should be noted that judges'part rules are now available at the New York Law Journal's Web site at www.nylj.com.