202.48 – settle an order

New York’s procedural rules establish specific timeframes for various court actions, but courts retain discretion to extend these deadlines when justice demands it. The 60-day rule under 22 NYCRR 202.48, which requires parties to settle or submit orders within that timeframe, has long been a source of debate among practitioners. Courts must balance strict adherence to procedural deadlines against the practical realities of case management and the interests of justice.

The recent decision in Solomon v Burden illustrates how courts navigate this tension, particularly when procedural technicalities might otherwise derail cases with clear liability. This approach mirrors the judicial flexibility courts have exercised in other procedural contexts, including summary judgment timing requirements where strict compliance could lead to unjust results.

Case Background

Solomon v Burden was a personal injury action arising from an automobile accident. The plaintiffs established liability through motion practice, and the court granted their motion for summary judgment on liability, leaving only damages to be determined. Following this ruling, the plaintiffs were required under 22 NYCRR 202.48 to settle or submit an order of reference within 60 days to move the case forward to a damages hearing.

The plaintiffs failed to meet the 60-day deadline for submitting the order. Recognizing their procedural lapse, they subsequently moved for an extension of time to submit the order of reference. The defendants opposed this motion, arguing that the strict 60-day deadline should be enforced and that the plaintiffs’ failure to comply should result in the order becoming null. The trial court exercised its discretion to grant the extension, and the defendants appealed.

The appellate court faced a common dilemma: whether to enforce rigid procedural deadlines or to exercise flexibility when doing so would serve the interests of justice and judicial economy. The case presented an ideal scenario for examining this question because liability had already been conclusively established, making a trial on that issue both unnecessary and wasteful of court resources.

Jason Tenenbaum’s Analysis:

Solomon v Burden, 2018 NY Slip Op 07480 (2d Dept. 2018)

I have always been intrigued, interested or mystified by how the Courts have treated the 60-day rule to settle or submit an order. This case from today adds more questions than answers to the overall calculus. I seem to remember the same analysis applied to CPLR 3212(b) pre-Brill.

“Here, under the particular facts of this case, the interests of justice dictate that the court not be burdened with a trial where liability is certain. To hold otherwise would be contrary to the intent of 22 NYCRR 202.48 and would lead to a waste of judicial resources (see Russo v City of New York, 206 AD2d 355, 356). Accordingly, the Supreme Court providently exercised its discretion in granting that branch of the plaintiffs’ motion which was, in effect, to extend their time to submit an order of reference.”

Legal Significance

The Second Department’s decision in Solomon affirms that procedural rules serve substantive justice rather than operating as traps for the unwary. While 22 NYCRR 202.48 establishes the 60-day deadline to promote prompt case resolution, the rule’s underlying purpose is judicial efficiency. When strict enforcement of the deadline would actually undermine efficiency by forcing an unnecessary trial on liability already conclusively established, courts possess discretion to extend the deadline.

This decision aligns with a broader trend in New York appellate courts toward functional rather than formalistic interpretation of procedural requirements. Courts increasingly examine whether procedural violations cause actual prejudice or undermine important systemic interests. When the violation is technical and causes no harm—and when enforcing it would create greater inefficiency—flexibility becomes appropriate.

The reference to Russo v City of New York provides important context. That case established that procedural rules should not be applied in ways that waste judicial resources or produce unjust results. The Solomon court extended this reasoning to deadline compliance, recognizing that requiring a trial solely because a party missed a submission deadline serves neither justice nor efficiency when liability is undisputed.

Practical Implications

For practitioners, Solomon provides both reassurance and caution. The reassuring aspect is that courts will not automatically void orders when parties miss the 60-day submission deadline, particularly when the delay causes no prejudice and extension serves judicial economy. Attorneys who recognize they’ve missed a deadline should promptly move for an extension with a detailed explanation of the circumstances and, crucially, an argument about why extension serves the interests of justice.

However, practitioners should not interpret Solomon as license for casual disregard of procedural deadlines. The decision emphasizes the “particular facts of this case,” suggesting that not all deadline violations will receive judicial forgiveness. The key distinguishing factor was clear liability, making trial unnecessary. In cases where factual disputes remain or where the delay prejudices the adversary, courts may take a stricter approach to enforcement.

Defense counsel opposing extension motions should focus on demonstrating prejudice or identifying how extension undermines the rule’s purpose. Generic arguments about the importance of adhering to deadlines will likely fail. Instead, counsel should show how the delay has compromised their ability to defend the case, how it has allowed evidence to degrade, or how it reflects a pattern of dilatory conduct by the adversary.

The decision also has implications for case management practices. Law offices should implement robust calendaring systems to track order submission deadlines. When delays occur due to court backlogs in reviewing proposed orders, attorneys should document their timely submission attempts. This documentation becomes crucial if a deadline dispute arises.

Key Takeaway

The Second Department’s decision demonstrates that courts will prioritize judicial efficiency and the interests of justice over strict procedural compliance with the 60-day settlement rule. When liability is clear and a trial would waste judicial resources, courts retain discretion to extend deadlines for submitting orders, even when parties miss the technical requirements of 22 NYCRR 202.48.

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