The abbreviated Brill rule applies (again)

Michael Palmeri, M.D., PLLC v Allstate Ins. Co., 2015 NY Slip Op 51130(U)(App. Term 2d Dept. 2015)

“Defendant failed to make its motion within 60 days of the filing of the notice of trial, as required by the rules of Part 41 of the Civil Court, and failed to offer any explanation in the Civil Court for the untimeliness of its motion. Accordingly, the Civil Court properly denied defendant’s motion as untimely”

How can a rule that was never published in the law journal or set forth in a compliance conference order have precedential effect?  This is especially the case when you are limiting a party’s right to exercise a right it enjoys under the CPLR?

The 120-day requirement does not apply to pro-se actions in the lower courts

Bryan L. Salamone, P.C. v Digiacomo, 2015 NY Slip Op 25025 (App. Term 2d Dept. 2015)

“After issue was joined, the matter was transferred to the arbitration calendar (see Rules of the Chief Judge [22 NYCRR] § 28.2 [b]) in September of 2012. (The record is silent as to whether the matter was ever arbitrated.) In June of 2013, plaintiff moved for summary judgment. By order dated July 1, 2013, the District Court denied plaintiff’s motion as untimely, on the ground that the motion had been made more than 240 days after the matter had been “transferred to the arbitration.”

“The District Court erred in finding that plaintiff’s time to make the motion for summary judgment commenced upon the matter being “transferred to the arbitration calendar,” since there is no such provision which governs the timeliness of a motion for summary judgment (see CPLR 3212 [a]; UDCA 1001, 1301; see also Uniform Rules for the District Courts [22 NYCRR] § 212.10). Inasmuch as no notice of trial, the District Court equivalent of a note of issue (see Chimbay v Palma, 14 Misc 3d 130[A], 2007 NY Slip Op 50019[U] [App Term, 2d & 11th Jud Dists 2006]), or certificate of readiness for trial had been filed (see e.g. Vinueza v Tarar, 100 AD3d 742 [2012]; Farrington v Heidkamp, 26 AD3d 459 [2006]; cf. Arbay v Sunoco, Inc., 31 Misc 3d 148[A], 2011 NY Slip Op 50977[U] [App Term, 9th & 10th Jud Dists 2011]), and there is no indication that the court clerk had fixed a date for trial (see UDCA 1301), plaintiff’s time to make its motion for summary judgment had not commenced. “

Just another reason why the 120-day limitation to file dispositive motions should not apply in Civil Court and District Court.  First, the CPLR deals with a Note of Issue, not a Notice of Trial.  Second, when one party is pro-se, that silly formality is dispensed with.  Thus, eve of trial summary judgment motions would be allowed.   There is no “rational basis” for why a different set of rules should apply in the general civil part for a party that has representation as opposed to a party who elects not to have representation.


Partial summary judgment declined after motion

Pollenex Servs., Inc. v GEICO Gen. Ins. Co., 2014 NY Slip Op 50953(U)(App. Term 2d Dept. 2014)

“Upon a review of the record, we find that there is a triable issue of fact regarding the medical necessity of the services at issue. Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is denied. We decline plaintiff’s request to limit the issues for trial (see CPLR 3212 [g]).”

Notice of Entry is not what some think it means

All Boro Psychological Servs., P.C. v Travelers Prop. Cas. Co. of Am., 2014 NY Slip Op 24161 (App. Term 2d Dept. 2014)

(1) In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court (Devin P. Cohen, J.), on November 12, 2010, granted defendant’s motion for summary judgment dismissing the complaint. Nevertheless, the action subsequently proceeded to trial before Judge Johnny Lee Baynes. At the nonjury trial, defendant’s counsel advised the court of the existence of the summary judgment order and that the order had been issued in open court following oral argument. However, the court ruled that the order was not binding because it had not been served with notice of entry on plaintiff’s counsel. Following the trial, judgment was entered in favor of plaintiff in the principal sum of $1,061.63.

(2) (And for this, Justice Baynes was elevated to Supreme Court.  Yet, how many Supreme Court orders granting declarations of non-coverage [always out of Kings] have been nullified  due to the Civil Kings rule that the failure to serve an order with notice of entry means it never happened.  I shake my head when I see some of these short form orders, but then I say to myself, it is Civil Kings, nothing should surprise me)

(3) “A grant of summary judgment is the procedural equivalent of a trial (see Falk v Goodman, 7 NY2d 87, 91 [1959]; News Am. Mktg., Inc. v Lepage Bakeries, Inc., 16 AD3d 146 [2005]), and an order granting such relief is as final and as conclusively determinative of all issues in an action as is a judgment after trial (see Engel v Aponte, 51 AD2d 989 [1976]; Riley v Southern Transp. Co., 278 App Div 605 [1951]). Thus, since the grant of summary judgment operates as a final determination on the merits of the claims in question, once a court has granted such a motion based on the facts adduced before it, the doctrine of res judicata applies (see Buckley & Co. v City of New York, 121 AD2d 933 [1986]; Cebron v McBride Dev. Corp., 93 AD2d 876 [1983]; Eidelberg v Zellermayer, 5 AD2d 658 [1958], affd 6 NY2d 815 [1959]), as does the doctrine of law of the case. Therefore, an order granting summary judgment is binding on all other judges of coordinate jurisdiction (see Carbon Capital Mgt., LLC v American Express Co., 88 AD3d 933 [2011]), and the conclusive effect of such an order may not be fatally [*2]undermined, as it was here, by allowing the party whose action was dismissed a second chance to litigate the matter

(4) “We note in passing that, under the circumstances presented, even if the trial court thought that the order granting summary judgment was not enforceable at the time of trial, the better practice would have been to exercise its discretion and grant defendant’s counsel’s request for an adjournment so as to afford defendant an opportunity to take any steps necessary to render the order enforceable instead of wasting scarce judicial resources conducting a trial after summary judgment had already been granted to defendant.”


Motion to strike “3212(g) findings” denied

EMC Health Prods., Inc. v Geico Ins. Co., 2014 NY Slip Op 50786(U)(App. Term 2d Dept. 2014)

“On appeal, defendant fails to articulate a sufficient basis to strike the Civil Court’s CPLR 3212 (g) findings in plaintiff’s favor. Defendant’s denials admitted the receipt of the bills at issue (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U]; [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]), and plaintiff was not required to establish a CPLR 4518 foundation for the bills (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]).”

Here is the unanswered question.  Can a Plaintiff appeal the finding of a judge who refuses to make these 3212(g) findings?

Add this to the mix of why the “120 day rule” or “60 day rule” should not apply to Civil Court MSJ’

Golden v Lynch, 2014 NY Slip Op 50663(U)(App. Term 2d Dept. 2014)

From the Appellate Term, Second Department today: “Although defendant claims that she was at a disadvantage because, as a self-represented litigant, she was not advised of various procedures, we note that a party’s status as a self-represented litigant does not entitle the party to greater rights than any other litigant (see Roundtree v Singh, 143 AD2d 995 [1988]). ”

So how come Pro-Se’s do not have to file Notices of Trial?  Why doesn’t the 120 day rule apply to them?  Why are there special parts for pro-s?  Anybody want to work on an Article 78 with me?  I think I have it written in my head.

It is not a Note of Issue

Exceptional Med. Care, P.C. v Fiduciary Ins. Co., 2014 NY Slip Op 24091 (App. Term 2d Dept 2014)

3212(a) specifically states “note of issue”.  When will the Appellate Division right this wrong?

“It was improper for the Civil Court to consider plaintiffs’ untimely cross motion for summary judgment in the absence of a showing by plaintiffs of good cause for not serving the motion within 120 days of the filing of the notice of trial, the Civil Court equivalent of a note of issue

The statute talks about a note of issue, not the civil court equivalent.  In Supreme Court, pro-se’s have to file a Note of Issue.  This is not the case in Civil Court.  This is such a perversion of the CPLR.

The 60-day rule that was never published in the law journal

Tong Li v Citiwide Auto Leasing, Inc., 2014 NY Slip Op 50481(U)(App. Term 2d Dept. 2014)

“It is undisputed that, under the rules of Part 41 of the Civil Court, motions for summary judgment are to be filed within 60 days of the filing of the notice of trial. It is also undisputed that defendant filed its motion in Part 41 more than 60 days after the notice of trial had been filed.”

Why does this Court apply 3212(a) to Civil Court matters?  It deals with Notes of Issue, not the notice of trial.  CPLR 3404 deals with Supreme Court and Count Court actions and the Second Department held that the statute does not apply to Civil Court practice as noted in Chavez.  Yet, the Appellate Term clearly noted prior to Chavez that the uniform court rules apply to CPLR 3404.  Also, absent a provision in a compliance conference order or preliminary conference order which limits the time to make a dispositive motion, who has the right to limit the 120 day period in a court where a Notice of Trial can be filed at any time?   Also, this rule is not in the law journal or on a website. It is a poor holding.  This is another case where the Second Department should really look at this issue.

A pleaded affirmative defense may not necessarily be used as an admission

Hollinden v City of New York, 2013 NY Slip Op 05676 (2d Dept. 2013)

I guess this goes into the category: Be careful what you plead?  A strange case.

“The plaintiff moved for summary judgment against the City on the first cause of action, submitting a certificate of disposition from the Supreme Court, Queens County, indicating that Dennis had been convicted of assault in the third degree and reckless endangerment in the second degree in connection with the assault at issue. The plaintiff contended that the tenth affirmative defense constituted an admission that Dennis had been acting within the scope of his employment. The Supreme Court granted the motion.

The Supreme Court erred in granting the motion. The City’s affirmative defense was that “such acts as were committed . . . in the scope of employment were justified.” In light of the conditional nature of this language, and the City’s denials that Dennis had in fact been acting within the scope of his employment, the City’s tenth affirmative defense did not constitute an admission. [*2]A plaintiff may not deem those allegations set forth in an answer that are favorable to him or her to be admissions, while refusing to be bound by those allegations that are unfavorable”

Court has discretion to overlook absence of pleadings

Washington Realty Owners, LLC v 260 Wash. St., LLC, 2013 NY Slip Op 03031 (1st Dept. 2013)

“Although CPLR 3212(b) requires that a motion for summary judgment be supported by copies of the pleadings, the court has discretion to overlook the procedural defect of missing pleadings when the record is “sufficiently complete”