John v. Bastien

• Decision Date: 21 September 1998
• Citation: 681 N.Y.S.2d 456,178 Misc.2d 664
• Parties: , 1998 N.Y. Slip Op. 98,622 Victor JOHN, Plaintiff, v. Yves BASTIEN, Defendant.
• Court: New York City Court

Page 456

681 N.Y.S.2d 456

178 Misc.2d 664, 1998 N.Y. Slip Op. 98,622

Victor JOHN, Plaintiff, v. Yves BASTIEN, Defendant.

Civil Court of the City of New York,

Kings County.

Sept. 21, 1998.

Zachary & Zachary, P.C., Staten Island (John M. Maslowski, of counsel), for defendant.

Morton Buckvar, New York City, for plaintiff.

ROLANDO T. ACOSTA, Judge.

Defendant moves for an order granting summary judgment in his favor upon the ground that plaintiff, a bicyclist who was allegedly hit by defendant's car, did not sustain a "serious injury" as a result of the accident, as required by Insurance Law § 5102. Because defendant's motion for summary judgment was not timely filed, the motion requires the Court to consider, as a preliminary matter, the scope of its discretion, conferred by the 1996 amendment to C.P.L.R. § 3212(a), to decide the merits of a belated summary judgment motion upon a showing of "good cause." In this case, the moving party's only claim of "good cause" is that the underlying motion has substantial merit.

Contentions of the Parties

Defendant (the moving party) does not dispute that his motion for summary judgment was filed more than 120 days after the filing of the note of issue and that therefore the motion was untimely under C.P.L.R. § 3212(a). Defendant argues that the merits of his motion should be addressed nonetheless because "the motion is meritorious and presents an opportunity to save judicial resources." According to defendant, this constitutes "good cause" under C.P.L.R. § 3212(a), for his failure to timely file the motion.

In support of his argument, defendant relies upon Professor David D. Siegel's Practice Commentary, McKinney's Consolidated Laws of New York (Supp.1997-1998) C.P.L.R. § 3212, at 60-61. In his Commentary, Professor Siegel argues that courts, in the exercise of their "broad discretion," should permit parties to avoid, on "good cause" grounds, the time constraints imposed by the 1996 amendment C.P.L.R. § 3212(a), where it appears that "there is really a good potential for summary judgment." Id. Although Professor Siegel recognized that the 1996 amendment was intended to discourage delays in making summary judgment motions, he complained that "[f]oreclosing the opportunity for a summary judgment motion in a sense punishes the whole court system by keeping a case alive when an earlier arrangement for a decent funeral is possible." Id. ¹ Siegel's rationale was recently adopted by Judge Straniere in Kudrowitz v. City of New York, N.Y.L.J., August 11, 1998, p. 24, col. 6 (Civil Court Richmond Co.).

Plaintiff, on the other hand, argues that regardless of the alleged merit of the motion, leave to extend the statutory deadline should not be granted because defendant has failed to allege any reason at all--and certainly no reason constituting "good cause"--for failing to timely file the motion.

Discussion

The 1996 amendment to C.P.L.R. § 3212(a) provides, in pertinent part, that a motion for summary judgment "shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown." The amendment, introduced at the request of the Chief Administrative Judge, was a remedial measure designed to eliminate, as much as possible, the practice of filing summary judgment motions on the eve of trial "in an attempt to delay a case or to secure transfer of the case to a different judge for trial"--a practice which "disrupt[ed] court calendars" and was "inequitable to the party served with a belated ... motion" since that party "may already have spent time and money preparing for trial." New York State Senate's Memorandum in Support, McKinney's 1996 Session Laws of New York, Chapter 492, at 2432 (Vol. 2).

Significantly, the legislature's enactment of the 1996 amendment evinces a clear intent to encourage the prompt filing of summary judgment motions and to discourage the type of delays which occurred under the then-current practice. For this reason, courts "are not likely to find 'good cause' for the delay too readily," as Professor Siegel acknowledged. Siegel, Practice Commentary, McKinney's Consolidated Laws of New York (Supp.1997-1998), C.P.L.R. § 3212, at 60-61.

Furthermore, the plain language of the amendment reflects a legislative policy determination that "leave" must be sought prior to the filing of a belated motion and thus necessarily prior to the court's consideration of the merits of the motion. Under these circumstances and in light of the plain language of the statute and the clear intent of the legislature, this Court finds that a showing that a belated summary judgment motion is meritorious is insufficient alone to constitute a showing of "good cause" under C.P.L.R. § 3212(a). "Good cause," as used in C.P.L.R. § 3212(a), refers not to the alleged strength of the belated motion but to the reason (i.e., the "cause") for filing the motion belatedly. See, e.g., Popular Construction, Inc. v. N.Y.C. School Construction Authority, N.Y.L.J., July 21, 1998, p. 24, col. 3 (Supreme Court Kings Co.) ("defendant has demonstrated 'good cause' for its delay" in filing the motion for summary judgment motion) (emphasis added); Surace v. Lostrappo, 176 Misc.2d 408, 673 N.Y.S.2d 543 (Supreme Court Nassau Co.) ("Good cause is a written expression or explanation by the party or his legal representative evincing a viable, credible reason for delay, which, when viewed objectively, warrants a departure or exception to the timeliness requirement") (emphasis added).

Although this Court's discretion to find "good cause" may be extremely broad, it is not unbridled. In light of the intent and the language of the amendment, the exercise of that discretion should be based, at the very least, upon a reason that is substantially related to the party's failure to file the motion within the 120-day period.

Indeed, if courts were permitted to find good cause to extend the statutory deadline based solely upon the...