Phoenix Garden Restaurant, Inc. v. Chu

• Decision Date: 18 December 1997
• Citation: 245 A.D.2d 164,667 N.Y.S.2d 20
• Parties: , 1997 N.Y. Slip Op. 10,930 PHOENIX GARDEN RESTAURANT, INC., et al., Plaintiffs-Respondents, v. Joseph CHU, et al., Defendants-Appellants, Eastbank N.A., et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 20

667 N.Y.S.2d 20

245 A.D.2d 164, 1997 N.Y. Slip Op. 10,930

PHOENIX GARDEN RESTAURANT, INC., et al., Plaintiffs-Respondents, v. Joseph CHU, et al., Defendants-Appellants, Eastbank N.A., et al., Defendants.

Supreme Court, Appellate Division,

First Department.

Dec. 18, 1997.

John M. Wilson, for Plaintiffs-Respondents.

Myron I. Altschuler, for Defendants-Appellants.

Before SULLIVAN, J.P., and MILONAS, MAZZARELLI and ANDRIAS, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Beverly Cohen, J.), entered February 6, 1997, which, inter alia, denied the cross-motions of defendants Joseph Chu and Stadium Office Development Corp. for summary judgment dismissing the first through third, fifth and seventh through eleventh causes of action in the 1992 complaint on the ground that such motions were untimely, having been made on the eve of trial, unanimously modified, on the law, and the motions granted to the extent of dismissing the seventh through eleventh causes of action in the 1992 complaint and otherwise affirmed, without costs.

Order, Supreme Court, New York County (Lorraine Miller, J.), entered June 13, 1997, which, inter alia, denied the motion of defendant Joseph Chu for summary judgment dismissing the 1997 complaint, unanimously modified, on the law, and the motion granted to the extent of dismissing the fourth, fifth and sixth causes of action in the 1997 complaint and otherwise affirmed, without costs.

In this action arising from a 25 year second lease, dated May 10, 1991, for premises housing plaintiff restaurant, the initial issue to be resolved is the effect on defendants' motions of the recent amendment to CPLR 3212(a) which, in the absence of a court order directing otherwise, requires that a motion for summary judgment "shall be made no later than [120] days after the filing of the note of issue, except with leave of court on good cause shown." (L. 1996, ch. 492, approved 8/8/96, effective 1/1/97). The note of issue in this action was filed in November 1995.

While there have been differing trial level decisions on the issue of whether the new amendment to CPLR 3212(a) should be applied prospectively or retroactively (cf., Carlstrand v. Kerwin, N.Y.L.J. 3/12/97, p. 31, col. 3 [not applicable to 1996 or earlier notes of issue]; Auger v. State of New York, 171 Misc.2d 866, 656 N.Y.S.2d 157 [120 days commences to run from letter dated 5/3/96 setting date for trial]; Tananbaum v. Huntington Hosp., N.Y.L.J. 6/2/97, p. 34, col. 3 [120 days commences on effective date of amendment, 1/1/97]; Moreno v. Pilevsky, N.Y.L.J. 7/29/97, p. 22, col. 1 [120 days commences 1/1/97]; DeJesus v. New York City Transit Authority, N.Y.L.J. 8/26/97, p. 21, col. 3 [120 days commences 1/1/97] ), we think the better view is reflected in the latter three decisions, which recognize that a purely prospective application undermines the statute's direct purpose of eliminating motions made on the eve of trial. However, references in those decisions to retroactive as opposed to prospective application of the amendment are not entirely accurate. "What is really meant when it is said that procedural statutes are generally retroactive is that they apply to pending proceedings, and even with respect to such proceedings they only affect procedural steps taken after their enactment....Actually, therefore, such statutes are not retroactive at all, but are prospective under the rule that procedural matters are governed by the law in force when they arise" (McKinney's Consolidated Laws of N.Y., Book 1, Statutes § 55, pp. 117-18). Thus, applying the amendment to pending cases, such as the one before us, where notes of issue had been filed before the effective date of the amendment, but providing that the 120 day period runs from the effective date of the amendment, eliminates the long-resented practice, by many lawyers, of seeking to delay trials by filing last minute motions for summary judgment...