KERN v. CITY OF ROCHESTER 1071 IAFF 1971 IAFF (2004)

By order entered and served on defendant Local 1071, International Association of Firefighters (hereinafter Local 1071) on October 29, 2003, this court denied its motion to strike plaintiff's demand for punitive damages against the union, except to the extent plaintiff was seeking punitive damages on her cause of action for violation of the New York Human Rights Law. The court also denied defendant Local 1071's cross-motion for summary judgment dismissing the complaint against it.   The union now seeks leave to reargue its cross-motion on those two issues contending that the court overlooked or misapprehended matters of fact or law.

Plaintiff counters that the motion to reargue is untimely, that the court correctly decided the union's summary judgment motion in the first instance, or, leave should be granted to allow plaintiff to correct any deficiencies in her complaint relative to the punitive damages issue.

Relative to the timeliness of a motion to reargue, CPLR 2221(d)(3) provides that a motion to reargue “shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry.”   The motion to reargue in this matter was made by Local 1071 on February 17, 2004.   Clearly, the thirty day time limit imposed by CPLR 2221(d)(3) has long since passed.

 Relying upon Millson v. Arnot Realty Corp., 266 A.D.2d 918, 697 N.Y.S.2d 435 (4th Dept. 1999), defendant Local 1071 urges that its motion to reargue is still timely even though made well behind the thirty day time period because a notice of appeal has been filed but not perfected.  Millson holds that, “While a motion to reargue ordinarily may not be made after the period for appealing the prior order has expired, a motion for reargument may be brought after the time to appeal has expired if a notice of appeal has been timely filed and the motion is brought prior to the submission of the appeal or at the latest before the appeal is determined” (Millson v. Arnot Realty Corp., 266 A.D.2d 918, 697 N.Y.S.2d 435 quoting Bray v. Gluck, 235 A.D.2d 72, 74, 663 N.Y.S.2d 725 [3rd Dept. 1997] and citing Lachman v. Lachman, 258 A.D.2d 875, 684 N.Y.S.2d 743 [4th Dept. 1999] ).   However, CPLR 2221 was amended effective July, 20, 1999 adding the express thirty day time limit for making a motion to reargue.  Millson was decided on November 12, 1999, after the effective date of the amendment to CPLR 2221.   The issue before this court is whether Millson was decided under the old or new CPLR 2221 and whether the judicial exception to the thirty day time limit for making a motion to reargue is still applicable.

 Professor Siegel believes that Millson should be deemed as applying the July 20, 1999 amendment to CPLR 2221 for two reasons.  “First is that the amendment became law on July 20, 1999, took effect ‘immediately’, and was therefore fully applicable when Millson was decided.   Second is the general rule that when the law changes while a case is on appeal, the appellate court will apply the law as it is now rather than as it was when the case began” (Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, C2221:8).   However, at least one court disagrees with Professor Siegel.   In Commissioners of the State Ins. Fund v. Brooklyn Barber Beauty Equipment Co., Inc., 2002 WL 32098265 (Civ. Ct. N.Y. Co. 2002), Judge Lucy Billings held that Millson was not applicable to whether a motion to reargue was timely when made beyond thirty days of service with notice of entry after the 1999 amendment to CPLR 2221 because Millson applied the old pre-amendment law.  Millson was deemed to apply the old law because, “While normally an appellate court applies the procedural law currently applicable when the appeal is decided, the court could not cut short a procedural time period that applied when the procedural step was taken in the trial court” (Id. citing N.Y. Statutes § 55;  Chapman v. State of New York, 261 A.D.2d 814, 815, 690 N.Y.S.2d 328, [3d Dept. 1999] ).   Judge Billings reasoned that since the Millson appeal was decided on November 12, 1999, the motion to reargue in the Millson case must have been served prior to July 20, 1999, thereby making it subject to the old law which construing the time limit for making a motion to reargue.   In fact, a review of the Record on Appeal in Millson confirms that there were two motions to reargue in that case, one dated June 3, 1998 and the other June 9, 1998.   The motions to reargue in Millson were made prior to the amendment to CPLR 2221.   The Fourth Department must have been applying the old law to the Millson motions to reargue.   This conclusion is also supported by the fact that the decision itself does not mention the thirty day time limit of CPLR 2221.   Additionally, none of the briefs submitted in Millson discuss the amendment to the statute.   Therefore, this court is not bound to follow Millson as it was not applying the current version of CPLR 2221.   Applying the current law applicable to defendant Local 1071's motion to reargue, it is untimely as a matter of law as it was made after the express thirty day deadline of CPLR 2221(d)(3).

Lastly, this holding that defendant's motion to reargue is untimely is also supported by the legislative history to the 1999 amendment to CPLR 2221.   The Memorandum of Office of Court Administration submitted in favor of the amendment states, “This measure, which developed out of a recommendation of the Suffolk County Bar Association, amends CPLR 2221 and 5701(a)(2) to clarify confusing provisions of law governing motions addressed to prior orders.   Currently, the law governing motions to reargue and renew is based primarily on court decisions, which address the area piecemeal and do not provide a coherent structure for treatment of these motions.”  (Mem. of Off. of Ct. Admin., 1999 McKinney's Session Laws of N.Y., Ch. 281).   The memo continues that, “․ the CPLR should contain provisions governing these motions that will distinguish clearly between motions for leave to reargue and leave to renew, and that will specify time limitations for the making of these motions and rights of appeal.”  (Id. [emphasis added] ) If the legislature had intended to codify the Bray v. Gluck exception to the thirty day time limit for a motion to reargue which was relied upon in Millson. it could have easily done so.

Defendant Local 1071's motion to reargue is denied as untimely.   In light of the foregoing, the court declines to address defendant's substantive arguments.   Plaintiff's cross-motion is denied as moot.   Plaintiffs' attorney shall prepare an order on notice to defendant Local 1071's attorney in conformance with this decision.   The filing of the papers used on the motion and cross-motion is dispensed with pursuant to CPLR 2220(a).

ROBERT J. LUNN, J.