Crawford v. Liz Claiborne, Inc.Crawford v. Liz Claiborne, Inc.
Plaintiff commenced this action to recover damages against defendants, claiming that they discriminated against him on the basis of his sexual orientation. A note of issue was filed by plaintiff on May 15, 2006,1 and motions for summary judgment,
The merits of an untimely motion for summary judgment may be considered by the court only if the movant demonstrates “good cause for the delay in making the motion—a satisfactory 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 that their failure to appreciate that the motion was due within 60 days is a satisfactory explanation. We disagree.
Defendants’ explanation for the delay is no more satisfactory than a perfunctory claim of law office failure, an excuse that is insufficient to constitute good cause under
The dissent‘s contention that the “preliminary conference order does not appear to comply with
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 between the parties was ambiguous and did not clearly set forth the deadline for making summary judgment motions. Here, no ambiguity existed regarding the amount of time the parties had to move for summary judgment following the filing of the note of issue; defendants simply failed to learn the requirement of
At bottom, the principal issue on this appeal is whether good cause existed to allow Supreme Court to consider a summary judgment motion that was untimely. In accord with the precedent that we are required to follow, we conclude that good cause was lacking in this case. In so holding, we certainly do not “take[ ] away the discretionary power of [a] trial court to excuse a de minimis delay in [making a] summary judgment motion“; rather, we find that the de minimis delay in this case was not satisfactorily explained (Brill, 2 NY3d at 652 [” ‘good cause’ in
Tom, J.P., and Williams, J., dissent in a memorandum by Tom, J.P., as follows: The preliminary conference order of Justice Jane Solomon provided that any dispositive motions shall be made “per local rule.” Due to counsel‘s confusion as to the applicable deadline, defendants completed service of their summary
In reversing, the majority supersedes the motion court‘s exercise of discretion in finding good cause for excusing a de minimis delay and, inexplicably, refers the matter to another justice. In the absence of any abuse of the considerable discretion afforded to the motion court in dealing with pretrial business and issuing preliminary conference orders, the majority‘s disposition constitutes undue interference in the internal management of the trial part. Such officious intermeddling intrudes upon the autonomy of the IAS court, interfering with its prerogative to control its calendar and introducing uncertainty and confusion into its proceedings. Under the factual circumstances of this case, the majority has, in essence, taken away the discretionary power 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 in entertaining defendants’ motion for summary judgment. The court‘s disposition of the motion is unassailable in view of plaintiff‘s failure to even attempt to establish the merits of his cause of action, and the reassignment of this case to another justice, without any valid explanation, is highly unusual and wholly unwarranted. Accordingly, I dissent and would affirm the order dismissing 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, without contradiction, “On May 16 a note of issue was in fact filed by plaintiff in this case.” According to plaintiff‘s brief,1 the rules of the IAS part required that “[a]bsent court order, post note of issue dispositive motions shall be made within 60 days thereof.” Thus, plaintiff told the motion court that, to be timely under this 60-day rule, “July 17 was the date the motion for summary judgment was due” (
Defendants’ attorney, however, explained that he was of the understanding that service had to be made in compliance with
Plaintiff brought an order to show cause on July 20, 2006 to strike the motion and supporting papers as untimely. At a conference on July 24, the court denied the order to show cause and directed that the issue of timeliness be raised in response to defendants’ summary judgment motion.
Supreme Court disposed of defendants’ motion in accordance with its decision on the record at oral argument. By way of explanation of the “local rule” alluded to in the preliminary conference order, Justice Solomon stated, “The local rule was a 60 day rule at some point, and before July the local rule was changed to track the CPLR, I believe because of Brill, but at the same time that chan[g]e was published, so was my expansion or amendment of my part rules to make it the 60 day rule.” Thus, the record indicates that, prior to the date defendants submitted their motion, the local rule was amended to provide a 120-day time limit for dispositive motions while 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. It further commended defendants’ extraordinary effort in serving, “within 48 hours of my local rule,” supporting papers consisting of over 300 pages of affidavits and exhibits. As to plaintiff‘s opposition, the court admonished him for failing to address the merits in response to the summary judgment motion, as it had directed upon denying his order to show cause predicated on the same narrow procedural ground. The court noted that it had never suggested the issue of scheduling would be entertained without reaching the substance of the motion. The court thereupon dismissed the complaint against all parties on the merits.
On appeal, plaintiff asserts that Supreme Court improperly entertained a late motion for summary judgment (
A court has discretion to entertain “a motion for summary judgment made more than 120 days after the filing of a note of issue” (Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124, 129 [2000]). “A motion court‘s exercise of discretion in determining that the moving party has established good cause for the delay will be overturned only 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 making the motion—a satisfactory explanation for the untimeliness—rather than simply permitting meritorious, nonprejudicial filings, however tardy” (Brill v City of New York, 2 NY3d 648, 652 [2004]).
Given the evident confusion surrounding whether the allusion to “local rule” in the preliminary conference order referred to the court‘s part rule, the former 60-day local rule or the 120-day rule that became effective before the motion was submitted in July 2006, the court properly found that defendants had established good cause for late service. The court concluded that the two-day delay in completing service by delivering the supporting affidavits and exhibits was de minimis, and providently exercised its discretion to consider the motion on its merits. The failure of the preliminary conference order to set a date by which the motion was to be made, its confusing reference to an unidentified “local rule,” the court‘s failure to advise defendants of its 60-day motion requirement and defendants’ uncontroverted failure to learn of the requirement until the very last moment convincingly establish good cause for filing a late motion (see Brill, 2 NY3d at 653 [” ‘good cause’ means good cause for the delay“]; see also Vila v Cablevision of NYC, 28 AD3d 248, 249 [2006] [ambiguity constitutes requisite good cause]; Cooper v Hodge, 13 AD3d 1111 [2004] [confusion as to grant of
While the parties contest whether or not service was timely under the applicable court or part rule, it should be observed that the court‘s preliminary conference order does not appear to comply with
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 the particular “local rule” he seeks to enforce. Whatever the utility of the trial court‘s individual practice in managing the business before it, such a parochial rule is not one of which this Court is required, or even permitted, to take judicial notice (
As a secondary consideration, it is necessary to determine whether the court‘s preliminary conference order has the requisite clarity to warrant its strict enforcement against a noncompliant party even assuming, for the sake of argument, that it might be deemed to “set a date” as required by
The preliminary conference order‘s vague reference to an unidentified “local rule” did not clearly 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 might be located (cf. Weitzner v Elazarov, 189 Misc 2d 646 [2001] [uniform Civil Term rules published monthly in New York Law Journal]) and neither
As to the merits, the record discloses that plaintiff had previously sought an order to show cause seeking to strike defendants’ moving papers as untimely. In a short-form order, the court stated, “OSC denied. Issue of timeliness of motion . . . should be raised in response thereto.” However, plaintiff made no response to the summary judgment motion, asserting at oral argument that, due to its purported untimeliness, “there is no need for us to respond.” In the decision read into the record, the court found good cause for defendants’ failure to adhere to its 60-day requirement and granted their motion on the ground that plaintiff failed to offer any opposition on the merits. Upon a review of the record, the court noted that plaintiff had performed 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 court concluded 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 to summary judgment; nor does he dispute his failure to offer, in rebuttal, evidentiary proof sufficient 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 contends that because his opposition to defendants’ motion was limited to procedural grounds, he must be accorded the opportunity to oppose the motion on the merits. However, he offers no authority in support of this proposition.
Unlike a motion to dismiss on the pleadings (
It is apparent that plaintiff made a tactical decision to attack the motion on procedural grounds alone. It is equally apparent that his chosen stratagem ignored the well-known adage that summary judgment, being the procedural equivalent of a trial, requires the submission of opposing evidentiary material sufficient to raise a material issue of fact requiring trial (see Cambridge Factors v Stagecoach Bus Sys., 155 AD2d 267, 268 [1989]). A procedural tactic that results in an adverse determination affords no more basis for relief when pursued on summary judgment rather than at trial. “While parties are accorded considerable latitude in charting their procedural course before the courts, they are bound by the consequences attendant upon the exercise of that prerogative” (Sean M. v City of New York, 20 AD3d 146, 150 [2005] [citations omitted]).
Because Supreme Court‘s disposition of this matter was in all respects proper under the circumstances, it is difficult to fathom the majority‘s insistence upon remittance for further proceedings before another judge. It is highly unusual for an appellate court to resort to such a measure, which is normally reserved for extraordinary circumstances under which the lower court is clearly disregarding the law or the facts (see e.g. Matter of Thomas S. v Robin Y., 209 AD2d 298 [1994], appeal dismissed 86 NY2d 779 [1995] [failure to issue order of paternity to biological father]; Matter of Crawford, 153 AD2d 108 [1990] [failure to terminate parental rights despite dearth of contact with child]). Although plaintiff charges that the motion court was prejudiced against him because, among other things, it dismissed his complaint, that outcome was dictated by plaintiff‘s own decision to oppose defendants’ motion on purely procedural grounds. In addition, the motion court‘s assessment that plaintiff‘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 a discovery motion. In so doing, he misrepresents the record. The transcript of the proceedings, for which plaintiff was not present, reveals that the court had just reviewed an excerpt of a videotape of plaintiff‘s examination before trial. Referring to plaintiff‘s unresponsiveness to
Remittance of this matter for reassignment to a different judge is an affront to the motion court, which did nothing to warrant reproach. The majority‘s disagreement with the motion court‘s decision, even if legally supportable (see Pena, 35 AD3d at 108), is not a plausible reason for impugning the court‘s impartiality. Indeed, the majority purports to have “every confidence that the IAS court would preside fairly and impartially over the matter upon remand.” They find only that the record suggests an “appearance of partiality.” If deciding a dispositive motion adversely to a party is to be regarded as an appearance of partiality warranting reassignment to another judge, no court will ever be able to grant summary judgment without fear that, at the whim of an appellate panel, it will be subjected to criticism that its adjudication suggests impropriety (see United States v Helmsley, 760 F Supp 338, 344 [1991], affd 963 F2d 1522 [2d Cir 1992] [if disqualification could be based on unfavorable rulings, “our system of justice would become difficult, if not impossible, to administer“]; Markus v United States, 545 F Supp 998, 1000 [DC NY 1982], affd 742 F2d 1444 [2d Cir 1983] [“It would open the way to ‘judge shopping’ “]). The majority‘s disposition will have a chilling effect on the resolution of motions seeking summary dismissal of unmeritorious actions, to the detriment of the efficient administration of justice.
Accordingly, the order should be affirmed.