Buckner v. City of New York

9 Misc. 3d 510
CourtNew York Supreme Court
DecidedAugust 3, 2005
StatusPublished

This text of 9 Misc. 3d 510 (Buckner v. City of New York) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Buckner v. City of New York, 9 Misc. 3d 510 (N.Y. Super. Ct. 2005).

Opinion

OPINION OF THE COURT

Paul G. Feinman, J.

As a threshold matter, in this case the court is called upon to decide whether the instant motion and cross motions for summary judgment are time-barred by Supreme Court, New York County, Civil Branch, rule 17. The rule provides that “[u]nless specified otherwise in a particular case, pursuant to CPLR 3212(a) all motions for summary judgment must be made no later than 60 days after the filing of the note of issue” (emphasis added). The rule was made effective July 15, 2000 and first published in the New York Law Journal’s Rules Pamphlet in its August 2000 edition. The current version, which is unchanged, can be found under the Rules of the Justices, Supreme Court, Civil Court, New York County, Civil Branch <http:// www.courts.state.ny.us/supctmanh/uniform_rules.htm>, cached at <http://www.courts.state.ny.us/reporter/webdocs/ Uniform_Rules_of_the_Justices.htm>. Thus, given that neither the case scheduling order nor any subsequent compliance conference order extended the time for the making of a summary judgment motion, the movant and cross movants cannot claim surprise. Certainly, since the Court of Appeals decision in Brill v City of New York (2 NY3d 648 [2004]), no litigant can reasonably argue that, absent good cause, the court must entertain its late motion for summary judgment.

In this case, defendant NEC Business Network Solutions, Inc. and defendant City of New York move and cross-move, respectively, for summary judgment. J.R. Communications, Inc. (JRC), a third-party defendant and third third-party defendant, cross-move for summary judgment dismissing the two third-party actions that were brought against it. However, as is set forth below, none of these various motions is timely, each having been filed more than 60 days after the filing of the note of issue. The time for filing the motions was never extended by the court, [512]*512and none of the parties has demonstrated good cause for filing the motion in an untimely manner. Thus, each of the motions is denied.

Factual and Procedural Background

In November 1997, NEC was awarded a contract with the New York City Health and Hospitals Corporation (HHC) to provide various hardware for the data communications network for nine of the approximately 20 facilities run by HHC, including Harlem Hospital (notice of motion, Crowe affidavit, 1Í12; notice of motion, exhibit K). NEC was awarded a second contract in July 1998 to provide hardware and software maintenance and upgrade services (notice of motion, exhibit L). By the subcontract for installation services master agreement signed in June 1997, NEC subcontracted with JRC for installation services (notice of motion, exhibit M). In June 2000, JRC performed installation of cables at Harlem Hospital (notice of motion, Crowe affidavit, 1113).

Plaintiff Dennis Buckner was employed by JRC as a cable installer at Harlem Hospital and was allegedly injured while at work on June 19, 2000 (notice of motion, exhibit J, bill of particulars, 1Í14). His immediate supervisor was Mark Hofsdale, a project manager for JRC (notice of motion, exhibit R, Hofsdale examination before trial [EBT], at 9), responsible for dispatching the workers and assigning them to various tasks throughout the building (id. at 76-77). On the date in question, plaintiff had received as usual his daily instructions from Hofsdale, and was directed to secure cables in a particular conveyor shaft (notice of motion, exhibit Q, Buckner EBT, at 17). He was not provided with any safety equipment (id. at 29-30). Buckner was injured when, as he lost his balance in the shaftway, he rescued himself by grabbing on to a pipe, injuring his shoulder (id. at 33-34). His injuries are permanent in nature (Cannavo affidavit in opposition, exhibit A, bill of particulars, 11 4). Buckner had never spoken with anyone from NEC (notice of motion, exhibit Q, Buckner EBT, at 22). Hofsdale did not recall seeing anyone from NEC at Harlem Hospital for this project (notice of motion, exhibit R, Hofsdale EBT at 65).

Plaintiff commenced this personal injury action in August 2001 against the City of New York and HHC (notice of motion, exhibit A). He claims violations by defendants of Labor Law §§ 200, 240, 241 (6) and § 241-a, and violations of certain sections of the Industrial Code, namely, 12 NYCRR 23-1.7, [513]*51323-2.5, 23-1.15 and 23-1.16 (notice of motion, exhibit J, verified bill of particulars, at 2-3). A note of issue was served on September 29, 2004 and filed with the court on October 1, 2004. Apart from motion practice, the court’s case management system reveals that from October 2002 through June 2005 the parties have appeared either for a compliance conference or for an “early settlement conference” on 12 occasions before the previously assigned justice or the judicial hearing officer who monitors compliance with discovery orders and conducts early case settlement conferences.1 At none of these times was a stipulation or order generated extending the time for summary judgment motions. In the city parts, any party can request a compliance conference merely by telephoning the differentiated case management clerk for the part without resort to motion practice, and such conferences have certainly been used to address this issue.

Legal Analysis

Pursuant to CPLR 3212 (a), any party may move for summary judgment once issue is joined, however, the court may set a date after which such motions may not be made, with the date not to be earlier than 30 days after the filing of the note of issue, and not later than 120 days after the filing of the note issue, except with leave of court on good cause shown. Under Supreme Court, New York County, Civil Branch, rule 17, the deadline for moving for summary judgment is 60 days. This has been the rule since July 15, 2000. Regardless of what the parties may or may not believe occurs in other counties, in New York County there is no rule applying a different time frame merely because the City is a party. The rule is the rule; it means what it says and it applies to all parties, including the City of New York.

In Brill v City of New York (2 NY3d 648 [2004]), the Court of Appeals held that in order to preserve the ameliorative nature of that section of the statute, where a motion for summary judgment is not filed within 120 days and there is no good cause offered for the delay, the parties forfeit their opportunity to have their motion considered by the court and must proceed to [514]*514trial, where a motion to dismiss may be made after plaintiff rests or a directed verdict may dispose of the case during trial {Brill at 653). The Court expressed the hope that litigants and trial courts would henceforward adhere to the statutory deadlines or proffer good cause for the delay in bringing their motions {id.). It would appear that the hope of the Court of Appeals has gone unfilled by these particular litigants, but this trial court will heed the clarion call to promote prompt resolution of civil cases by avoiding belated motions that serve to deny all litigants justice by postponing their day in court for trial with a judge and jury.

None of the movants in this matter brought its motion or cross motion for summary judgment on or before November 29, 2004, which was the applicable 60-day cutoff for summary judgment motions. NEC filed its motion for summary judgment on January 12, 2005. JRC filed its cross motion for summary judgment on April 6, 2005.

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Bluebook (online)
9 Misc. 3d 510, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buckner-v-city-of-new-york-nysupct-2005.