50 E. 191st St. Assoc. v. Gomez

Decision Date30 August 1990
Citation561 N.Y.S.2d 334,148 Misc.2d 560
Partiesst ST. ASSOC., Petitioner(s)/Plaintiff(s), v. Gladys GOMEZ and Cesar Cordova, Respondent(s)/Defendant(s).
CourtNew York City Court

Finkelstein, Borah, Schwartz, Altschuler and Goldstein, P.C., New York City, for petitioner.

Mark A. Siegel, New York City, for respondents.

CARL O. CALLENDER, Judge.

Motion for voluntary discontinuance granted on condition that Petitioner pay $150 to Respondents within 10 days of receipt of this order.

The attorney for the Petitioner moves pursuant to CPLR 3217 for permission to discontinue the instant proceeding without prejudice. The petition was first noticed to be heard on March 28, 1990 in part 18, and in part 18c on April 11, 1990. The last trial date was August 14, 1990. The Petitioner's attorney sought to serve the respondent's attorney on August 10, 1990, but he rejected the papers because he believed the service of the papers was much too close to the hearing date set forth in the notice of motion of August 14, 1990. There are presently two issues before the court: 1. Was the attempted service of the notice of motion on August 10th defective because it was too close to the hearing date of August 14th? 2. Under what terms and conditions should the requested motion to discontinue the proceeding be granted, if at all?

I. The Court's determination:

1. The motion papers were timely served in full compliance with the strictures of CPLR 406.

The Respondent's attorney makes much of the fact that CPLR 404 and 405 make reference to noticing and renoticing the petition, while CPLR 406 makes no reference to a renoticing of the petition.

After reviewing CPLR 404 through 406, reading the commentaries and the legislative reports, this Court is convinced that CPLR 406 permits service shorter than the normal CPLR requirements when a summary proceeding pursuant to the RPAPL article seven is involved. The Petitioner cites the case of Goldman v. McCord et al., 120 Misc.2d 754, 466 N.Y.S.2d 584 (N.Y.Civ.Ct., 1983) for the proposition that pursuant to CPLR 406, any motion in a special proceeding may be made on little or no notice as long as it is made returnable when the petition is scheduled to be heard.

The Petitioner contends that the purpose of CPLR 406 was to shorten the time for notice of pre-hearing motions and his actions in this case of only providing 4 days notice was consistent with the rule in question. The Third Preliminary Report of the Advisory Committee on Practice and Procedure (3rd Report Leg.Doc; 1989, No. 17, p. 159) sustains the Petitioner's contention. That report expounds: "This rule shortens the time for notice of pre-hearing motions, so that they may be heard at the hearing on the petition." (See also Matter of Rockwell v. Morris, 12 A.D.2d 272, 211 N.Y.S.2d 25, aff'd 10 N.Y.2d 721, 219 N.Y.S.2d 268, 176 N.E.2d 836 (1961) (An oral motion was permitted in this case.) It is clear that CPLR 406 was adopted to reduce the time otherwise provided for motions in the CPLR.

The Respondents assert that because the instant proceeding was first noticed to be heard in part 18C on April 11, 1990, any subsequent adjournment of the hearing dates constituted a renoticing of the petition to be heard. The Respondents argue that because CPLR 406, (unlike CPLR 404 and 405) makes no reference to renoticing the petition, the short notice provision of CPLR 406 is not applicable to the instant case which has been frequently re-noticed.

It seems clear to the Court after reading the commentaries and the Legislative reports that the Respondents' interpretation of 'renoticing' is not what the legislature meant when it used the term "re-noticed to be heard." This Court concludes that CPLR 404 and 405 when it used the phrase "re-notice to be heard" was referring to a case where a motion had been decided and the responsive pleadings had already been served. The reason renoticing of the petition was mentioned, was that ordinarily the serving of the responsive pleading triggers or is the final catalyst for the hearing date for the petition.

However, when a motion has been brought, the automatically activated time schedules no longer operate. Accordingly, if the motion to dismiss is denied, provision would have to be made for re-noticing the petition for a hearing. In certain situations, (corrections of defects in papers, See CPLR 405) either party may re-notice the matter for a hearing. In other circumstances, only the Petitioner may re-notice the matter (objections in point of law, see CPLR 404(a)). In any event the matter of renoticing the petition to be heard applies to occasions where a motion has recently been decided, and does not pertain to adjourned hearing dates as the respondent's attorney contends. (See also the Sixth Preliminary Report of the Advisory Committee on Practice and Procedure 6th Report N.Y.Leg.Doc., 1962, no. 8, p. 129.) Even though the matter was repeatedly adjourned, the notice of motion in question was properly and timely noticed to be heard at the time the petition was scheduled to be heard in full accord with the requirements of CPLR 406.

2. The Petitioner's motion to discontinue.

The Petitioner moves to voluntarily discontinue the proceeding pursuant to 3217 of the CPLR. Since the Petitioner failed to serve a notice of discontinuance prior to the service of the responsive pleading, or to file with the clerk of the court a stipulation signed by the attorneys of record prior to ...

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4 cases
  • In the Matter of New York State Urban Dev. Corp., 2010 NY Slip Op 50301(U) (N.Y. Sup. Ct. 3/1/2010)
    • United States
    • New York Supreme Court
    • March 1, 2010
    ...shortens the time for notice of pre-hearing motions, so that they may be heard at the hearing on the petition" (50 E. 191st St Assoc. v Gomez, 148 Misc 2d 560, 561 [1990]). In interpreting these provisions, it is also recognized that one court has noted that "it is not clear that the EDPL c......
  • PCMH Crotona, L.P. v. Taylor, 29938/16.
    • United States
    • New York Civil Court
    • August 22, 2017
    ...service shorter than the normal CPLR requirements when a summary proceeding pursuant to RPAPL article 7 is involved." 50 E. 191st St. Assoc. v. Gomez, 148 Misc.2d 560, 561 (Civ. Bronx 1990), where the Court held that CPLR § 406 shortens the time for notice of pre-hearing motions, so that th......
  • PCMH Crotona, L.P. v. Taylor, 29938/16
    • United States
    • New York Civil Court
    • August 22, 2017
    ...service shorter than the normal CPLR requirements when a summary proceeding pursuant to RPAPL article 7 is involved." 50 E. 191st St. Assoc. v Gomez, 148 Misc 2d 560, 561 (Civ. Bronx 1990), where the Court held that CPLR §406 shortens the time for notice of pre-hearing motions, so that they......
  • 126 Spruce Street, LLC v. Club Central, LLC
    • United States
    • New York District Court
    • February 16, 2007
    ... ... time as petition" (citing Goldman v McCord, 120 Misc 2d 754 [1983], and 50 E. 191st St. Assoc. v Gomez, 148 Misc 2d 560 [1990]) ... ...
12 books & journal articles
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Archive New York Civil Practice Before Trial. Volume 2 - 2016 Contents
    • August 18, 2016
    ...1997), §37:71 3H Enterprises v. Bennett , 276 AD 2d 965, 715 NYS2d 90 (3d Dept 2000), §§36:513 50 E. 191st Street Associates v. Gomez , 148 Misc2d 560, 561 NYS2d 334 (Civ Ct Bronx Co 1990), §42:144 527 Madison Avenue Co. v. De Loy Executive Service, Inc. , 36 AD2d 502, 321 NYS2d 811 (1st De......
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Archive New York Trial Notebook. Volume 2 - 2016 Trial motions and post-verdict proceedings
    • August 9, 2016
    ...2013), §38:160 48-48 Associates v. Solow , 97 AD2d 742, 742, 469 NYS2d 11, 12 (1st Dept 1983), §6:22 50 E. 191st St. Assoc. v. Gomez , 148 Misc2d 560, 561 NYS2d 334 (Civ Ct Bronx Co 1990), §10:37 530 East 89 Corp. v. Unger , 43 NY2d 776, 402 NYS2d 382 (1977), §15:100 622 West 113th Street C......
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Archive New York Civil Practice Before Trial. Volume 2 - 2014 Contents
    • August 18, 2014
    ...1997), §37:71 3H Enterprises v. Bennett , 276 AD 2d 965, 715 NYS2d 90 (3d Dept 2000), §§36:513 50 E. 191st Street Associates v. Gomez , 148 Misc2d 560, 561 NYS2d 334 (Civ Ct Bronx Co 1990), §42:144 527 Madison Avenue Co. v. De Loy Executive Service, Inc. , 36 AD2d 502, 321 NYS2d 811 (1st De......
  • Voluntary Discontinuance and Settlement
    • United States
    • James Publishing Practical Law Books New York Trial Notebook - Volume 1 Motions before trial
    • May 3, 2022
    ...NYS2d 736, 737 (3d Dept 1991) (discontinuance conditioned on plaintiffs submitting to depositions). • 50 E. 191st St. Assoc. v. Gomez , 148 Misc2d 560, 561 NYS2d 334 (Civ Ct Bronx County 1990) (payment of respondent’s legal fees). • Beigel v. Cohen , 158 AD2d 339, 551 NYS2d 28 (1st Dept 199......
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