Goldman v. McCord

Decision Date15 August 1983
Citation120 Misc.2d 754,466 N.Y.S.2d 584
PartiesSol and Irving GOLDMAN, Petitioners-Landlords, v. J. Leo McCORD, Respondents-Tenants.
CourtNew York City Court

Laurie Levinberg, New York City, for petitioners-landlords.

Fischbein, Olivieri, Rozenholc & Badillo, New York City, for respondents-tenants; David R. Brody, New York City, of counsel.

LEWIS R. FRIEDMAN, Judge:

This case presents an issue which is presented nearly everyday in the landlord-tenant motion parts, how much notice must be given for motions made during the course of summary proceedings under Article 7 of the RPAPL. The answer is neither obvious nor provided by reported decisions.

Respondent moved for summary judgment and served his notice of motion on counsel at 1 P.M. on July 5; the motion was returnable the next morning. The petitioner contends that in the absence of an order to show cause the motion violates CPLR 2214 and, therefore, motion should be dismissed on jurisdictional grounds. Clearly if this were an ordinary action, petitioner would be correct and the motion would have to be dismissed. [See, e.g., Thrasher v. U.S. Liability Ins., 45 Misc.2d 681, 257 N.Y.S.2d 360 (Sup.Ct. NY Co.1965) ] or, alternatively, to be adjourned to give petitioner the proper time to respond. See, e.g., Coonradt v. Walco, 55 Misc.2d 557, 285 N.Y.S.2d 421 (Sup.Ct. Sullivan Co., 1967).

Respondent, however, argues that a summary proceeding under the RPAPL is a special proceeding governed by Article 4 of the CPLR and that CPLR 406 is applicable to his motion. That Rule provides:

"Motions in a special proceeding; made before the time at which the petition is noticed to be heard, shall be noticed to be heard at that time."

Thus, respondent argues that any motion in a summary proceeding under the RPAPL can be made on little or, indeed, no notice if it is made returnable at the same time as the petition. Despite the unfairness of the procedure on litigants opposing substantial motions in landlord-tenant proceedings, respondent correctly interprets the applicable law.

Rule 406 was adopted specifically to reduce the time otherwise provided for motions in the CPLR. The Third Preliminary Report of the Advisory Committee on Practice and Procedure [Leg.Doc. (1959) 17], 159 explained:

This rule shortens the time for notice of pre-hearing motions, so that they may be heard at the hearing on the petition. Otherwise, the general motion practice rules apply to special proceedings.

The provision for short service is consistent with decisions under former law. See, e.g., Rockwell v. Morris, 12 A.D.2d 272, 275, 211 N.Y.S.2d 25 (1st Dept.), aff'd 10 N.Y.2d 721, 219 N.Y.S.2d 268, 176 N.E.2d 836 (1961) (oral motion permitted).

These results are logical extensions of the legislative concept that special proceedings can be determined as though they were themselves motions rather than as plenary actions. That is, Article 4 of the CPLR does not envision any interlocutory motion practice during a special proceeding except for motions to dismiss on points of law. See CPLR 404; cf. CPLR 7804(f). Unknown to Article 4 is the plethora of motions which appear to be standard in New York County landlord and tenant proceedings--motions to strike jury demands and counterclaims, motions for summary judgment, motions to dismiss under CPLR 3211, motions to stay and consolidate with Supreme Court actions, motions for discovery or to strike notices to admit and the like. See Siegel, New York Practice (1978), § 577. Indeed, the drafters contemplated the summary judgment motions would be unavailable. Third Preliminary Report of the Advisory Committee on Practice and Procedure, supra, 159.

The courts and others have often commented that RPAPL summary proceedings have become so protracted that the title "summary" is no longer applicable. Motion practice is surely one reason. The delays would be longer still if 8 days, or 13 if mail service is used, were to be insisted upon for motions. The entire time frame set up by the drafters of RPAPL Article 7 would be disrupted if that time were allowed. On the other hand, if a party serves motions with little or no notice as permitted by CPLR 406, it is only fair and reasonable for the court to provide an adequate adjournment to allow for a response to...

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8 cases
  • ex rel. Leo v. Stanley
    • United States
    • New York Supreme Court
    • July 29, 2015
    ...[1st Dept.2007] ). In any event, the motion is neither untimely nor improperly advanced. (CPLR 406; Goldman v. McCord, 120 Misc.2d 754, 755, 466 N.Y.S.2d 584 [Sup.Ct., New York County 1983] [motions in special proceedings may be made on little or no notice as long as they are made returnabl......
  • Article 70 of the CPLR for A Writ of Habeas Corpus, the Nonhuman Rights Project, Inc. ex rel. Hercules & Leo v. Stanley
    • United States
    • New York Supreme Court
    • July 29, 2015
    ...[1st Dept.2007] ). In any event, the motion is neither untimely nor improperly advanced. (CPLR 406 ; Goldman v. McCord, 120 Misc.2d 754, 755, 466 N.Y.S.2d 584 [Sup.Ct., New York County 1983] [motions in special proceedings may be made on little or no notice as long as they are made returnab......
  • Findlay House, Inc. v. Zhang Hongliu
    • United States
    • New York Civil Court
    • August 31, 2018
    ...[U], 71 N.Y.S.3d 924 [Civ. Ct., Bronx County 2017].) Little or no notice is permitted by CPLR 406. ( Goldman v. McCord , 120 Misc.2d 754, 756, 466 N.Y.S.2d 584 [Civ. Ct., N.Y. County 1983]. Any prejudice to the opposing party caused by truncated service of a motion can be cured by an "ad ho......
  • 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
    ...could be made on little or no notice if it was made returnable at the same time as the petition pursuant to CPLR 406 (Goldman v McCord, 120 Misc 2d 754, 754-755 [1983]). The court in Goldman accordingly held that a motion for summary judgment that was served at 1:00 p.m. on the day before t......
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6 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
    ...(1st Dept 2002), §28:150 Goldman v. City of New York , 287 AD2d 482, 731 NYS2d 212 (2d Dept 2001), §§39:191, 39:421 Goldman v. McCord , 120 Misc2d 754, 466 NYS2d 584 (Civ Ct NY Co 1983), §42:141 Goldman v. White Plains Ctr. for Nursing Care LLC , NYLJ, Sept 19 2006, p 23, col 3 (Sup Ct NY 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
    ...(1st Dept 2002), §28:150 Goldman v. City of New York , 287 AD2d 482, 731 NYS2d 212 (2d Dept 2001), §§39:191, 39:421 Goldman v. McCord , 120 Misc2d 754, 466 NYS2d 584 (Civ Ct NY Co 1983), §42:141 Goldman v. White Plains Ctr. for Nursing Care LLC , NYLJ, Sept 19 2006, p 23, col 3 (Sup Ct NY C......
  • A. Introduction to Summary Proceedings Introduction to Summary Proceedings
    • United States
    • New York State Bar Association Practical Skills: Residential Landlord-Tenant Law & Procedure (NY) IV Conveying the Tenancy
    • Invalid date
    ...Legislature strengthens the presumption that the statutes were intended to be complementary.[791] CPLR 406.[792] Goldman v. McCord, 120 Misc. 2d 754, 755, 466 N.Y.S.2d 584 (Civ. Ct., N.Y. Co. 1983).[793] Id. at 756. [794] 150 Greenway Terrace, LLC v. Cullen, 14 Misc. 3d 130(A), 836 N.Y.S.2d......
  • Special Proceedings
    • United States
    • James Publishing Practical Law Books New York Civil Practice Before Trial
    • May 2, 2018
    ...The motion may be made on little or no notice, so long as the motion papers are served before the return date. [ Goldman v. McCord , 120 Misc2d 754, 466 NYS2d 584 (CivCt NY Co 1983).] IN PRACTICE: Request adjournment Seek an adjournment when respondent makes a motion that you want to oppose......
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