Crawford v. Liz Claiborne, Inc.

• Decision Date: 01 November 2007
• Docket Number: No. 113702/04,No. 995.,995.,113702/04
• Citation: 45 A.D.3d 284,2007 NY Slip Op 8301,844 N.Y.S.2d 273
• Parties: CRAIG CRAWFORD, Appellant, v. LIZ CLAIBORNE, INC., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

45 A.D.3d 284

844 N.Y.S.2d 273

2007 NY Slip Op 8301

CRAIG CRAWFORD, Appellant, v. LIZ CLAIBORNE, INC., et al., Respondents.

No. 995.

No. 113702/04

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided November 1, 2007.

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered September 20, 2006, which granted defendants' motion for summary judgment dismissing the complaint, reversed, on the law and the facts, without costs, the motion denied, the complaint reinstated, and the matter remanded for further proceedings before a different Justice.

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 if any, were to be made within 60 days, i.e., by July 14. The directive requiring summary judgment motions to be made within 60 days after the filing of the note of issue was issued in a preliminary conference order, which referenced the local rule of the Supreme Court, New York County.² Defendants' motion for summary judgment dismissing the complaint was made when it was served on July 19. Defendants' counsel asserted that the motion was made after the deadline because counsel had erroneously believed that she had 120 rather than 60 days to make the motion. Supreme Court, accepting counsel's excuse, considered the merits of the motion and granted it.

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 CPLR 3212 (a) (see Breiding v Giladi, 15 AD3d 435 [2005]; Connors, CPLR 3212[a]'s Timing Requirement for Summary Judgment Motions, 71 Brook L Rev 1529, 1557-1558 [Summer 2006]; see also Greenfield v Gluck, 2003 NY Slip Op 50729[U] [App Term, 2d & 11th Jud Dists 2003]; cf. Leader v Maroney, Ponzini & Spencer, 276 AD2d 194, 200 [2000], affd 97 NY2d 95 [2001] [counsel's erroneous belief that original version of CPLR 306-b applied to action did not constitute good cause to extend time for service under amended version of CPLR 306-b]). Notably, the local rules of Supreme Court, New York County and the rules of the individual justices of that county are available, among other places, on line (http://www.nycourts.gov/supctmanh/UNIFRLrev. 2007.507.pdf [last updated Feb. 28, 2006; accessed Oct. 18, 2007]). That the motion was only a few days late does not eliminate the requirement that good cause be demonstrated (see Milano v George, 17 AD3d 644 [2005]), and we are not free, for the sake of judicial economy, to consider an untimely summary judgment motion in the absence of a showing of good cause (see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]; Brill, supra; Perini Corp. v City of New York [Department of Envtl. Protection], 16 AD3d 37 [2005]).

The dissent's contention that the "preliminary conference order does not appear to comply with CPLR 3212" and is not enforceable, and that defendants therefore had 120 days (as opposed to 60) following the filing of the note of issue to move for summary judgment, was not raised by defendants. To the contrary, defendants tacitly concede that the 60-day period applies but contend that the directive in the preliminary conference order requiring that all motions for summary judgment be made within that period was ambiguous. This purported ambiguity, the argument goes, constitutes good cause for the belated motion. Since it is undisputed that the parties had 60 days to move for summary judgment following the filing of the note of issue, the dissent's unclear discussion on the issue of the timeliness of defendants' motion for summary judgment is inapposite.³

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 the expressly referenced local rule. Therefore, ignorance of the applicable rule, not an ambiguity in the preliminary conference order, explains defendants' failure to make a timely motion (see Sutton v Lavezzo, 160 AD2d 292, 293 [1990] [counsel's ignorance of rules of IAS part insufficient to excuse his failure to appear at calendar call]). For similar reasons, the dissent's reliance on Cooper v Hodge (13 AD3d 1111 [2004] [mutual mistake regarding whether trial court extended time to make summary judgment motions]) and Stimson v E.M. Cahill Co., Inc. (8 AD3d 1004 [2004] [family emergencies of lawyer and his secretary requiring both of them to be out of the office on last day on which to serve summary judgment motion]) is misplaced.

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 CPLR 3212 (a) 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" (emphasis added)]; see Milano, 17 AD3d at 645 [summary judgment motion made one day past deadline needed to be supported by good cause for the delay]). Although we have every confidence that the IAS court would preside fairly and impartially over the matter upon remand, plaintiff raises a reasonable concern about the appearance of impartiality, and we accordingly direct that this matter be reassigned to another Justice. In so doing, contrary to the unfortunate statements by the dissent, we neither "reproach" nor "impugn[] the court's impartiality"; nor, of course, does our mere disagreement with the IAS court's decision to consider the merits of the motion play any role in that direction. Finally, contrary to the dissent, our concern about the appearance of impartiality is not founded upon Supreme Court having decided a dispositive motion adversely to plaintiff.

Concur — McGuire, Malone and Kavanagh, JJ.

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 judgment motion several days after the deadline provided in her part rules. In deciding the motion, Justice Solomon acknowledged that the preliminary conference order's reference to the "local rule" was unclear and found good cause for the minimal delay. The court decided the motion on the merits and dismissed the complaint.

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" (General Construction Law § 20).

Defendants' attorney, however, explained that he was of the...