CASTRO v. HOMSUN

Citation Codes

Equivalent Citations

citation codes

Docket Number

2005-11846.

See more information ...

Smart Summary

Factual and Procedural Background

In December 1999, the plaintiff Frank Castro and defendant Homsun Corporation entered into a contract and closed on a partially completed house in Stony Point, New York. Subsequently, construction problems arose with the house. On July 19, 2000, the plaintiff commenced this action seeking damages for breach of contract. After discovery, the plaintiff served a note of issue by mail on April 26, 2005, which was received by the Rockland County Clerk on May 2, 2005, and stamped filed on May 6, 2005. The defendants moved on September 2, 2005, for partial summary judgment dismissing all causes of action against certain defendants and for summary judgment on a counterclaim. The Supreme Court granted those branches of the defendants' motion, finding the motion timely as it was filed within 120 days after the note of issue was filed. The plaintiff appealed from that portion of the order.

Legal Issues Presented

Whether the defendants’ motion for partial summary judgment was timely made within the 120-day period following the filing of the note of issue.
Whether good cause existed to excuse any delay in the filing of the defendants’ motion for summary judgment.

Arguments of the Parties

Plaintiff's Arguments

The plaintiff contended the defendants’ motion for summary judgment was untimely because the note of issue was served and filed on April 26, 2005, making the motion deadline earlier than the defendants asserted.

Defendants' Arguments

The defendants argued the motion was timely because the note of issue was filed on May 6, 2005, the date the Clerk stamped it as filed, and the motion was made within 120 days after that date.
Defendants' counsel submitted an affidavit asserting illness during part of the relevant period, establishing good cause for a three-day de minimis delay in making the motion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Albany Builders' Supply Co. v Eastern Bridge Structural Co., 235 NY 432, 437-438	Filing date is the date papers are received by the office with which they are to be filed.	Used to determine that the note of issue was filed on May 2, 2005, the date it was received by the Clerk.
Sweeney v City of New York, 225 NY 271, 275-276	Same as above regarding filing date.	Supported the determination of the filing date for the note of issue.
Gates v State of New York, 128 NY 221, 228	Same principle on filing date.	Reinforced the rule on computing filing dates.
Matter of Esteves, 31 AD3d 1028	Filing date principles under CPLR.	Applied to confirm filing date as date of receipt by Clerk.
Billings v Berkshire Mut. Ins. Co., 149 AD2d 895, 896	Filing date rules.	Used to establish the filing date for the note of issue.
Matter of Cochran v New York City Employees' Retirement Sys., 131 AD2d 351	Filing date principles.	Supported the court’s filing date determination.
Stein v Wainwright's Travel Serv., 92 AD2d 961	Filing date rules.	Confirmed the filing date analysis.
Brill v City of New York, 2 NY3d 648	Untimely summary judgment motions must be denied unless good cause is shown.	Guided the court’s analysis on the necessity of good cause for delay.

Court's Reasoning and Analysis

The court analyzed the timing of the defendants' summary judgment motion relative to the filing of the note of issue. It determined that the filing date is the date the note of issue was received by the Clerk, May 2, 2005, not the date it was stamped filed, May 6, 2005. Accordingly, the 120-day period for filing the summary judgment motion expired on August 30, 2005. The defendants filed their motion after this deadline, rendering it untimely. However, the court recognized that untimely motions must be denied unless good cause is shown. The defendants submitted an affidavit demonstrating that counsel was ill during part of the relevant period, constituting good cause for a minimal three-day delay. The court therefore found the delay excusable and affirmed the grant of summary judgment for that reason. The plaintiff’s other contentions were deemed raised for the first time on appeal and thus not considered.

Holding and Implications

The order of the Supreme Court is affirmed insofar as appealed from, with costs.

The court’s decision confirms that for purposes of timing summary judgment motions, the filing date is the date the note of issue is received by the Clerk. Although the defendants’ motion was technically untimely, the court excused a minimal delay due to good cause shown. This decision directly affects the parties by upholding the dismissal of claims against certain defendants and granting summary judgment on the counterclaim. No new legal precedent was established beyond the application of existing filing and timeliness rules.

Show full summary ...

FRANK CASTRO, Appellant, v. HOMSUN CORP. et al., Respondents.

Ordered that the order is affirmed insofar as appealed from, with costs.

In December 1999 the plaintiff and defendant Homsun Corporation signed a contract and closed on a partially completed house in Stony Point, New York. Subsequently, various construction problems arose with the house. On July 19, 2000 the plaintiff commenced this action. After some discovery, the plaintiff served his note of issue by mail on April 26, 2005. It was received at the office of the County Clerk of Rockland County (hereinafter the Clerk) on May 2, 2005, and stamped "Filed" by the Clerk on May 6, 2005. The Clerk's docket display also gives the transaction date for the note of issue as May 6, 2005.

By papers served on September 2, 2005 the defendants moved, inter alia, for partial summary judgment dismissing all the causes of action asserted against the defendants 20 Exchange Second, LLC, Horizon Corp., and David Marom and for summary judgment on the counterclaim asserted by the defendant 20 Exchange Second, LLC, against the plaintiff. The plaintiff opposed, inter alia, those branches of the motion which sought summary judgment, contending solely that they were untimely made since his note of issue was served and filed on April 26, 2005. In reply, the defendants asserted that the motion was timely made since the note of issue was filed on May 6, 2005 and the motion was made less than 120 days after that.

The Supreme Court; granted, inter alia, those branches of the defendants' motion which were for partial summary judgment dismissing all the causes of action asserted against the defendants 20 Exchange Second, LLC, Horizon Corp., and David Marom and that branch of the defendants' motion which was for summary judgment on the counterclaim asserted by the defendant 20 Exchange Second, LLC, against the plaintiff. It found "that the motion was timely made since it was filed within 120 days after the note of issue was filed." We affirm, but for a different reason.

Papers that are required to be filed are considered to have been filed when they are received by the office with which, or by the official with whom, they are to be filed. In this instance, the record shows that the note of issue was received by the Clerk on May 2, 2005. Thus, that is the date it was considered filed for purpose of time computation ( see Albany Builders' Supply Co. v Eastern Bridge Structural Co., 235 NY 432, 437-438; Sweeney v City of New York, 225 NY 271, 275-276; Gates v State of New York, 128 NY 221, 228; Matter of Esteves, 31 AD3d 1028; Billings v Berkshire Mut. Ins. Co., 149 AD2d 895, 896; Matter of Cochran v New York City Employees' Retirement Sys., 131 AD2d 351; Stein v Wainwright's Travel Serv., 92 AD2d 961).

Summary judgment motions are required to be made within 120 days after the filing of the note of issue. In this case, that period expired on August 30, 2005. Therefore, the motion was untimely. Untimely made summary judgment motions must be denied outright, irrespective of their merits, unless good cause is shown for the delay ( see CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648).

In this instance, good cause was shown for the three-day de minimis delay in making the motion. The defendants' counsel submitted an. affidavit asserting that he was ill during a portion of the relevant time period.

The plaintiff's remaining contention is improperly raised for the first time on appeal.