Timing!/Timing!/Timing!

We are all familiar with the real estate sobriquet “Location! Location! Location!”  In litigation the analogous “nom de guerre” is “Timing! Timing! Timing!”

Four recent cases illustrate how litigants can be trapped into timing conundrums that require judicial intervention and discretion to achieve extraction.

Genesis Merchant Partners, LP v. Gee, 2013 NY Slip Op 32328(U) (9/17/2013 Sup. Ct. N.Y. Co., Joan A. Madden, J.)

Genesis moved, pursuant to CPLR §3212 for summary judgment in lieu of complaint.  Gee defaulted and subsequently moved, by order to show cause, to vacate the default and dismiss the action.  The Court set forth the background:

Specifically, plaintiff filed the summons, notice of motion for summary judgment in lieu of complaint and supporting papers on or about May 22, 2013.  CPLR 3213 provides that the summons served with papers seeking summary judgment in lieu of complaint “shall require the defendants to submit answering papers within the time provided in the notice of motion.”  CPLR 3213 further provides that “[t]he minimum time such motion shall be noticed to be heard shall be as provided by subdivision (a) of rule 320 for making a notice of appearance, depending on the method of service.”  CPLR 320(a) requires an answer to be served within 30 days of completion of service.  Here, service was made on defendant per CPLR 308(2) which provides that services is complete 10 days after the filing of proof of service.

The time chronology:

According to the affidavits of service substituted service was made on defendant’s place of business in Tennessee on June 7, 2013, and the affidavit of service was filed with the court on June 17, 2013.  Thus, service was complete on June 27, 2013, which is 10 days from the filing of proof of service.

Supreme Court concluded that Genesis had failed to comply with the requirements of CPLR § 3213:

Under CPLR 3213, the minimum time for noticing summary judgment on lieu of complaint was 30 days from June 27, 2013.  Since the motion was noticed to be heard on June 17, 2013, plaintiff failed to comply with the time requirements under CPLR 3213.

Gee “argu[ed] that the short service of a motion for summary judgment in lieu of complaint constituted a jurisdictional defect and requires dismissal of the action”.  Genesis countered that “short service is not jurisdictional and the remedy is to provide defendant with an opportunity to respond to the motion”.

Justice Madden noted that trial courts have disagreed whether the defect was jurisdictional:

While there is no appellate authority specifically on point, the First Department has held that a motion for summary judgment in lieu of complaint must be denied “for failure to provide sufficient time on the notice of motion for defendants to respond.”  National Bank of Canada v. Skydell, 181 AD2d 645 (1st Dept 1992).  Moreover, in Ross Bicycles v. Citibank, 149 AD2d 330 (1st Dept 1989), a case cited in Skydell, where a default judgment had been entered five days before the statutory minimum time had elapsed, the court held that the default judgment should vacated and the defendant be given an opportunity to appear and contest the motion for summary judgment in lieu of complaint.

Justice Madden noted that:

Here, defendant does not challenge the manner in which the service of the summons with notice of motion and supporting papers was made and does not deny receiving them.  Defendant’s only challenge is the date the notice of motion was noticed to be heard.

And concluded that:

Under these circumstances, I conclude that plaintiff’s failure to comply with CPLR 3213 time requirements for defendant’s response to the motion is not jurisdictional but rather “circumscribes the defendant’s available response time” Plaza 400 Owners Corp. v. Resnicoff, 168 Misc2d 837 (NY Civ. Ct. 1996, J. Stallman); Imbriano v. Seaman, 189 Misc2d 357 (Dist. Ct. Nassau Co. 2001, Gartner, J.).  As a result, Supreme Court:

As a result, Supreme Court:

ORDERED that defendant’s motion to vacate its default in answering is granted, and defendant shall e-file papers in response to the motion for summary judgment in lieu of complaint and provide working copies of papers to Part 11, room 351, 60 Centre Street, New York, NY on or before October 21, 2013[.]

Grskovic v. Holmes, 2013 NY Slip Op 06545 (10/9/13 App. Div. 2nd Dept.)

Upon this appeal, the Second Department “addresse[d] the extent to which courts may utilize CPLR 2001 to remedy defects in the e-filing of summonses, summonses with notice, and complaints, when the defect results in a statute of limitations problem for the filing party”.

The dispute arose from the following facts:  Grskovic was injured on May 30, 2008 when he was struck by an automobile owned by Holmes.  The claim was subject to a three-year statute of limitations (expiring on May 30, 2011).

Grskovic’s attorney prepared a summons and complaint on April 11, 2011; wrote a check for the filing fee on April 19, 2011 and sent the complaint and filing fee to Gotham Process Server, Inc. on May 25, 2011 for filing with the Westchester County Clerk.

Gotham was unable to purchase an index number because e-filing had become mandatory in Westchester County as of March 1, 2011.  Grskovic’s attorney learned of the e-filing requirement on May 2, 20111.

On May 4, 2011 Grskovic’s attorney established a temporary e-filing user account; and electronically purchased an index number and “filed” the summons and complaint – which receipt and filing was confirmed by the New York State Court’s electronic filing system (“NYSCEF”).  Grskovic’s counsel nevertheless did not receive an index number – and, on June 2, 2011, three days after the statute of limitations expired, the case manager for Grskovic’s attorney learned that the May 4, 2011 NYSCEF filing had been entered into the “practice/training system” and not its “live” system.  As a result, the summons and complaint were never actually filed.

Grskovic’s attorney moved, pursuant to CPLR § 2001 “to deem the summons and complaint filed on May 4, 2011, nunc pro tunc. Grskovic’s attorney contended that “[t]he motion was supported by an attorney’s affirmation, the plaintiff’s affidavit, an affidavit of the plaintiff’s counsel’s case manager, and documentation verifying all aspects of the foregoing rendition of facts.  In essence, the plaintiff argued that the relevant email exchanges and confirmations led his counsel to believe that the action had been properly and timely commenced through the newly-mandated e-filing system, that his counsel’s office had acted with diligence, and that the defendant would suffer no prejudice from the nunc pro tunc recognition of the e-filing of the summons and complaint”.

Holmes “opposed the requested relief and argued that the controlling three-year statute of limitations had expired without any proper filing of the summons and complaint.  The defendant also argued that the plaintiff’s counsel had not acted diligently, as approximately one month had elapsed from the purported e-filing of the documents until the plaintiff’s counsel learned the reason why no index number was ever received”.

Supreme Court denied Grskovic’s motion:

The Supreme Court reasoned that CPLR 2001, which authorizes forgiveness of mistakes, omissions, defects, or irregularities in the filing of initiatory papers, was unavailable to the plaintiff since the failure to timely interpose the plaintiff’s claim was “more than a mere technical infirmity” and was a “nonwaivable jurisdictional defect.”  The Supreme Court also concluded that granting the requested relief would prejudice the defendant by depriving the defendant of a viable statute of limitations defense.

The Appellate Division summarized the operative facts:

Here, the subject motor vehicle accident occurred on May 30, 2008.  Therefore, the plaintiff had until May 30, 2011, to commence the action in a timely fashion (see  CPLR 214).  The “practice” filing occurred on May 4, 2011, comfortably in advance of the expiration of the statute of limitations.  As a result of the confirmatory email messages, the plaintiff’s counsel apparently felt secure in the knowledge that the action had been commenced.  Thereafter, unable to log into the NYSCEF filing system using the user name and reset password it had obtained on May 4, 2011, and after making telephonic inquires to the County Clerk, the plaintiff’s counsel, on June 20, 2011, only three days after the statute of limitations expired, learned that there was no record of the May 2011 e-filing because it had been completed in the practice system and not in the live system.  Just six days later, the plaintiff moved for relief pursuant to CPLR 2001.

The defendant “argue[d] that Grskovic’s e-filing error cannot be corrected, as doing so would prejudice the defendant by depriving her of a viable statute of limitations defense”.

The Second Department nevertheless “conclude[d] that under a proper reading of CPLR 2001, the issue of prejudice to the defendant need not be reached”.

As to the law, the Appellate Division stated:

More specifically, we believe that many reported cases in New York reflect a misreading of the language of CPLR 2001.  Judicial discretion and the absence of prejudice are not requirements that must be applied in a combined fashion.  Rather, a close reading of the statute reveals that CPLR 2001 recognizes two separate forms of potential relief to address mistakes, omissions, defects, or irregularities in the filing of papers.  The statute distinguishes between the “correction” of mistakes and the “disregarding” of mistakes, and each invokes a different test.  Courts may “correct” mistakes “upon such terms as may be just” (CPLR 2001).  The statute then says, set off by an “or,” that mistakes may be “disregarded” if a substantial right of a party is not prejudiced (id.).  Thus, a “correction” of a mistake appears to be subject to a broader degree of judicial discretion without necessary regard to prejudice, whereas a complete “disregarding” of a mistake must not prejudice an opposing party.  Indeed, in Goldenberg, the Court of Appeals appears to have drawn the same distinction between the “correcting” of mistakes and the “disregarding” of them, when it stated that the purpose of the amended version of CPLR 2001 “was to allow trial courts to fix or, where nonprejudicial, overlook defects in the filing process (Goldenberg v. Westchester County Health Care Corp., 16 NY3d at 327 [emphasis added]).  The distinction between simply correcting a mistake and overlooking a mistake makes sense, as a party seeking to wholly disregard a filing mistake may understandably be expected to bear a higher burden than a party seeking a mere correction.

A secondary inquiry, therefore, is whether the plaintiff’s request for a nunc pro tunc recognition of his filing in the NYSCEF “practice” system amounts to a mere correction that may be permitted upon terms that may be just, or whether it constitutes a full-scale disregard of the filing error that, in order to be permitted, requires a showing that the defendant will not be prejudiced by the disregard.

And the Second Department concluded that:

We hold that under the circumstances of this case, the e-filing that was to have occurred on May 4, 2011, with the County Clerk is a “correction” of the “practice” filing that had, in fact, been timely undertaken by the plaintiff’s counsel with the County Clerk.  The summons and complaint were electronically submitted to the County Clerk on that date, and was performed in a mistaken manner and method, which courts are permitted to correct on terms that may be just (see Goldenberg v. Westchester County Health Care Corp., 16 NY3d at 328).  Therefore, the plaintiff was under no burden to demonstrate an absence of prejudice to the defendant.  In contrast, excusing a clearly untimely filing would constitute the disregarding of an error, which could not be permitted because it would be prejudicial to a defendant to deprive it of a legitimate statute of limitations defense.  That, however, is a circumstance that we find not to exist here.

Snyder v. Walsh, 2013 NY Slip Op 51675(U) (10/16/13 Sup. Ct. Albany Co., Platkin, J.)

In this combined CPLR article 78 proceeding, “petitioner/plaintiff Eric J. Snyder sue[d] respondents/defendants James A. Walsh and Douglas A. Kellner as Co-Chairs of the New York State Board of Elections (“SBOE”) seeking the following relief: (1) a declaration and determination that the SBOE’s dissemination of a ballot proposal and abstract for a proposed constitutional amendment to allow casino gambling violate[d] article VII, § 8 of the State Constitution and Election Law § 4-108; and (2) an injunction restraining the SBOE from allowing the proposed amendment to be voted upon at the November 5, 2013 general election.”

Before the Court was a “motion] to dismiss the petition/complaint on four grounds: (1) statute of limitations; (2) laches; (3) failure to state a cause of action; and (4) failure to join necessary parties.  [Movants] further argued that the petition/complaint could not be amended without leave of court and that petitioner/plaintiff failed to acquire personal jurisdiction over the new parties named for the first time in the amended pleading.

Supreme Court set forth the process for judicial review:

The Election Law also establishes a process for a judicial review.  “The wording of the abstract or form of submission of any proposed amendment may be contested in a proceeding instituted by any person eligible to vote on such amendment” (Election Law § 16-104[2]).  In such a proceeding, the ballot proposal or abstract may be challenged as “misleading, ambiguous, illegal, or inconsistent with existing law” (Matter of Gaughan v. Mohr, 77 AD3d 1475, 1476-77 [4th Dept 2010]).  But suit must be “instituted within fourteen days after the last day to certify the wording of any such abstract or form of submission” (id. [3d]).

And based on the Election Law, Justice Platkin concluded that the proceeding was time-barred:

The proposed constitutional amendment to allow casino gambling is to be presented to voters at the November 5, 2013 general election.  The SBOE therefore was required to approve the form of the ballot proposal and the wording of the abstract by August 5, 2013 (Election Law § 4-108[1][a], [d]).  Accordingly, the last day to initiate a legal challenge was August 19, 2013 (id. § 16-104[2][3].  As this proceeding was commenced at least 44 days after the expiration of the statutory deadline fixed by the Legislature, the causes of action alleged in the petition/complaint must be dismissed as time barred.

The Court rejected the petitioner’s claim that the proceeding was not time-barred because of a delay in the SBOE:

In opposing the motion to dismiss, petitioner/ plaintiff further asserts that the SBOE failed to publish the certified ballot and abstract language on its Internet web site until August 23, 2013, four days after the expiration of the statute of limitations.  But even if the law permitted the statute of limitations to be tolled during this period of delay and the 14-day period in which to bring suit began to run on August 23, 2013, the petition/complaint would still be untimely.

Justice Platkin set for the Court’s rationale:

Finally, a brief review of the posture of this case relative to the election calendar confirms that the concerns underlying Election Law § 16-104(3) are implicated here.  Despite the diligent efforts of all involved since the commencement of this suit just two weeks ago, this decision comes only twenty days prior to the general election.  Additional time in this Court would have been required if any of the claims withstood the motion to dismiss.  And regardless of the disposition ordered in Supreme Court, an aggrieved party has a right to appeal to the Appellate Division and potentially the Court of Appeals.  In the meantime, election ballots have been certified (Election Law § 4-114), military ballots were mailed to members of our armed forces (id. § 10-108[1][a] and the process of distributing absentee ballots is well underway (id. §§ 8-400, 8-406).  Further, the November 5, 2013 general election are nearing their final stages.

Patterson v. Triggs, N.Y.L.J 10/24/13 (Sup. Ct. Bronx Co., Danziger, J.)

This action arose out of a personal injury claim.  Patterson alleged that:  “he sustained serious injuries as a result of an automobile accident caused by the defendants’ negligence on March 9, 2009.  Patterson was a passenger in the vehicle that was owned by the defendant, Timmie Sampson and driven by the defendant, Bashir Triggs.”

Triggs and Sampson “move[d] for summary judgment pursuant to CPLR 3212 on the ground that the plaintiffs did not sustain serious injuries within the meaning of Insurance Law 5102(d).”  Defendants Maria and Nicholas J LLC “submit papers entitled a cross-motion joining in the request for summary judgment on “serious injury” grounds and also seek[ing] dismissal on liability [against a non-moving party].”

At the outset, Supreme Court:

“[N]oted that co-defendants application is titled a “cross-motion.”  A cross-motion is defined as “merely a motion by any party against the party who made the original motion, made returnable at the same time as the original motion…”  See, McKinney’s CPLR, Practice Commentaries, pg 179.  Further, while a cross-motion can be made by any party, and not just a party moved against the main motion, it must be made against the party that made the original motion.”  See, McKinney’s CPLR 7b Practice Commentaries, pg 180.  Likewise, a cross-motion is an improper vehicle for seeking relief from a non-moving party.  See Dugas v. Bernstein, 5 Misc.3d 818 (Sup. Ct. NY 2004).

And Justice Danziger thereafter dismissed the unrelated cross-motion as untimely:

As to the portion of the application requesting summary judgment and dismissal of all claims and cross-motion on liability grounds, same must be denied as untimely, CPLR 3212(a).  As previously stated, the branch of the relief requested against the “non-moving” plaintiff herein is not a proper form of relief pursuant to a cross motion.  And while the improper classification of this application would normally be excused, the timeliness of this request requires such analysis.

In this action, the Note of Issue was filed on May 30, 2012, on September 11, 2012 (103 days later), the underlying motion was made.  Then on December 7, 2012 (ninety days after the expiration of the 120 day time frame [for moving for summary judgment]) the co-defendants application was made.

A cross-motion made on entirely distinct provision of law as the main motion cannot extend the time to make a timely application, (See Fillannino v. Triborough Bridge and Tunnel Authority, 34 AD 3d 280 (1st Dept., 2006).  Here, the original application sought summary judgment on “serious injury” grounds.  That is not similar to dismissal on liability grounds.  Further, as good cause for the delay has not been shown, the branch of the application seeking summary judgment on liability grounds is denied as untimely, CPLR 3212(a).

In both Genesis and Grskovic, the plaintiff was “saved by the bell” of judicial discretion; however, the parties in Snyder and Patterson suffered a judicial “TKO”.  Quite obviously, the “lesson learned” from Genesis, Grskovic, Snyder and Patterson is that “timing matters”.  Escape from a timing misstep cannot be assured.

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