Late summary judgment motion permitted where plaintiff-movant established good cause for the delay

In Panfilow v. 66 E. 83rd St. Owners Corp., 2023 NY Slip Op 03357 (2d Dept. 2023) the motion court denied plaintiff’s motion for summary judgment based upon a violation of Labor Law § 240(1) as untimely.  The timeline, order, and bases for making a late motion, are set forth below:

On December 18, 2018, pursuant to a prior court order, the plaintiff filed a note of issue and certificate of readiness which identified outstanding discovery that was set to occur over the three months following the date of the filing of the note of issue.

Approximately two months after the deposition of a representative of the defendant Janbar, Inc. (hereinafter Janbar), was completed, the plaintiff moved, inter alia, for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1). The defendants cross-moved for summary judgment dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence.

In an order dated March 12, 2020 (hereinafter the March 2020 order), the Supreme Court, inter alia, denied, as untimely, both that branch of the plaintiff’s motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) and the defendants’ cross-motion for summary judgment dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence.

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Pursuant to the Uniform Civil Term Rules of the Kings County Supreme Court, the parties were required to move for summary judgment no later than 60 days after the filing of the note of issue, unless they obtained leave of court upon good cause shown (see Kings County Supreme Court Uniform Civil Term Rules, part C, rule 6, citing CPLR 3212[a]; Lyebyedyev v Hoffman, 84 AD3d 751, 752, 921 N.Y.S.2d 866). Good cause in this context “requires a showing of good cause for the delay in making the motion” (Brill v City of New York, 2 NY3d 648, 652, 814 N.E.2d 431, 781 N.Y.S.2d 261; see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726-727, 819 N.E.2d 995, 786 N.Y.S.2d 379). Significant outstanding discovery may, in certain circumstances, constitute good cause for a delay in making a motion for summary judgment (see Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124, 129, 733 N.E.2d 203, 711 N.Y.S.2d 131).

Panfilow v. 66 E. 83rd St. Owners Corp., 2023 NY Slip Op 03357 (2d Dept. 2023).

The Second Department held plaintiff had established good cause for the delay in moving for summary judgment:

[P]laintiff demonstrated good cause for his delay in moving for summary judgment (see Munoz v Agenus, Inc., 207 AD3d 643, 644, 173 N.Y.S.3d 18; Alvarez v Eviles, 56 AD3d 500, 500, 867 N.Y.S.2d 528). As an initial matter, we note that the court directed the plaintiff, over the plaintiff’s objection, to file a note of issue or face sanctions or dismissal of the action, despite the fact that a significant amount of discovery, including, inter alia, the depositions of the parties, had yet to occur (see Gonzalez v 98 Mag Leasing Corp., 95 NY2d at 129; Smith v Nameth, 25 AD3d 599, 600, 807 N.Y.S.2d 411). Indeed, together with setting a deadline directing the plaintiff to file a note of issue by December 18, 2018, the court set forth a discovery schedule, contemplating the exchange of discovery by the parties, including depositions, to occur over the three months following the filing of the note of issue. Moreover, shortly after the plaintiff filed the note of issue, he moved for leave to extend the time to move for summary judgment. In an order dated January 28, 2019, the court denied that motion without prejudice and with leave to renew. The parties thereafter substantially complied with the discovery schedule, but the deposition of Janbar’s representative was not completed until June 2019. In August 2019, the plaintiff then moved, inter alia, for summary judgment on the issue of liability on the Labor Law § 240(1) cause of action. Under these circumstances, we find that the plaintiff established good cause for his delay in making the motion (see Brill v City of New York, 2 NY3d at 652; Nisimova v Starbucks Corp., 108 AD3d 513, 514, 967 N.Y.S.2d 838).

Panfilow v. 66 E. 83rd St. Owners Corp., 2023 NY Slip Op 03357 (2d Dept. 2023)

The Second Department reached the merits of the motions rather than remitting, and granted plaintiff summary judgment on the Labor Law § 240(1) cause of action.  Noting that the defendant did not offer any excuse for its late cross-motion, the Court nonetheless also reached the merits of the defendants’ cross-motion for summary judgment and dismissed plaintiff’s causes of action alleging a violation of Labor Law § 200 and common-law negligence.

Decision Date: June 21, 2023

Practical Practice Point

The summary judgment landscape was upended in 2004 by the decision of the Court of Appeals in Brill v. City of New York, 2 NY3d 648 (2004). In Brill, nearly one year after the filing of plaintiff’s note of issue, the City moved for summary judgment.  The trial court, in the interests of judicial economy, heard the motion since plaintiff did not manifest any prejudice from the delay, and granted summary judgment to the City.  The Appellate Division affirmed, and the Court of Appeals reversed, holding that the “Supreme Court should not have considered the merits of the City’s motion for summary judgment.”  After reviewing the history of eve of trial summary judgment motions, and the Legislature’s enactment of time limitations in 1996, the Court stated:

We conclude that “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, non-prejudicial filings, however tardy.  That reading is supported by the language of the statute – only the movant can show good cause – as well as by the purpose of the amendment, to end the practice of eleventh-hour summary judgment motions.  No excuse at all, or a perfunctory excuse, cannot be “good cause.”

After concluding that the City did not submit any reason for the delay, the Court concluded: “The violation is clear.  What to do is the more vexing issue.”  Citing Kihl, the Court stated:

The present scenario, anther example of the sloppy practice threatening the integrity of our judicial system, rests instead on the violation of legislative mandate . . . What is to happen in this case is that summary judgment will be reversed and the case returned to the trial calendar, where a motion to dismiss after plaintiff rests or a request for a directed verdict may dispose of the case during trial.  Hopefully, as a result of the courts’ refusal to countenance the statutory violation, there will be fewer, if any, such situations in the future, both because it is now clear that “good cause” means good cause for the delay, and because movants will develop a habit of compliance with the statutory deadlines for summary judgment motions rather than delay until trial looms.”

In Brill the Court acknowledged:

Summary judgment has proven a valuable, practical tool for resolving cases that involve only questions of law. Summary judgment permits a party to show, by affidavit or other evidence, that there is no materials issue of fact, and that judgment may be directed as a matter of law, thereby avoiding needless litigation cost and delay where appropriate, summary judgment is a great benefit both to the parties and to the overburdened New York State trial courts (citations omitted).

Good cause for a late summary judgment motion may not be raised for the first time in reply, see Rivera v. Zouzias, 190 AD3d 994 (2d Dep’t 2021).

Summary judgment is a powerful tool.  Make sure not to waive the right to bring a meritorious motion by failing to seek leave and demonstrate good cause when moving beyond the deadline established by the court.