LLP v. Eli Harel, Defendant. (2023)

In this attorney-fee-collection action, plaintiff, Schwartz Sladkus Reich Greenberg Atlas LLP, moves under CPLR 3212 for summary judgment against defendant, Eli Harel. The motion is denied as untimely.

CPLR 3212 (a) provides that the default deadline for filing a summary-judgment motion is 120 days after the filing of the note of issue, and permits the motion court to set a shorter deadline (down to a minimum of 30 days). The last operative status-conference order in this case, consistent with the undersigned's part rules, set a summary-judgment-motion deadline of 60 days after filing of the note of issue. (See NYSCEF No. 10 at 2.) Plaintiff filed its note of issue on March 19, 2020. The executive-order-based COVID-19 toll was in effect on that date. As a result, the parties' deadline to move for summary judgment was 60 days from the last day of the toll, or November 3, 2020. (See Murphy v Harris, 210 AD3d 410, 411 [1st Dept 2022] [discussing nature and effect of executive orders imposing the COVID-19 toll].) Because the 60th day of that period was a Saturday, the deadline was extended until the following Monday, January 4, 2021. (See General Construction Law § 25-a.)

Plaintiff did not move for summary judgment by January 4, 2021. Instead, plaintiff did not file the current motion until more than 20 months after that deadline, on September 29, 2022. (NYSCEF No. 13.) Given the untimeliness of the motion, this court must deny it—whether or not the motion might otherwise be meritorious—unless plaintiff has provided good cause for the delay in moving. (See Kershaw v Hospital for Special Surgery, 114 AD3d 75, 83-86 [1st Dept 2013], citing Brill v City of New York, 2 NY3d 648 [2004].) Plaintiff has not done so.

Plaintiff's opening papers on this motion do not attempt to establish good cause for the delay in filing the motion. On reply, the only good cause identified is that "the original deadline [fell] squarely during the height of the COVID-19 pandemic" and its associated "disruptions to legal practice." (NYSCEF No. 32 at ¶¶ 6, 8.) But given the COVID-19 toll, the summary-judgment-motion deadline did not fall during the height of the COVID-19 pandemic in New York City, but instead eight months later, at the beginning of 2021. Regardless, even if one were to assume that the pandemic's continuing disruptive effect might justify some short additional delay at the beginning of 2021, that would not provide good cause for plaintiff's waiting to file the motion until the fall of the following year.

Given this unexcused delay, the Court of Appeals' decision in Brill, as interpreted in Kershaw and other Appellate Division precedents, requires denial of plaintiff's motion without regard either to prejudice or the motion's merits. (See Kershaw, 114 AD3d at 84-85; Perini Corp. v City of New York, 16 AD3d 37, 40 [1st Dept 2005] [holding that motion court erred in considering prejudice in deciding whether to excuse movant's delay in seeking summary judgment].)

Accordingly, it is

ORDERED that plaintiff's motion for summary judgment is denied.

DATE 2/1/2023

Gerald Lebovits, J.