RIVERA v. GLEN OAKS VILLAGE OWNERS, INC

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Docket Number

2005-05473, 2005-11150.

Attorney(S)

Thomas D. Hugues, New York, N.Y. (Richard C. Rubinstein of counsel), for appellant. Salenger, Sack, Schwartz Kimmel (Pollack, Pollack, Isaac De Cicco, New York, N.Y. [Brian J. Isaac] of counsel), for respondent.

Judges

Peter B. Skelos

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Smart Summary

Factual and Procedural Background

This case arises from an action to recover damages for personal injuries. The defendant, Glen Oaks Village Owners, Inc., appealed two orders from the Supreme Court, Queens County. The first order, dated May 23, 2005, denied the defendant’s motion for summary judgment on the ground that the motion was untimely. The second order, dated August 9, 2005, effectively granted reargument but adhered to the prior determination denying summary judgment. The defendant challenges these rulings on appeal.

Legal Issues Presented

Whether the defendant’s motion for summary judgment was timely made under the applicable procedural rules, despite being served twice with different return dates.
Whether the Supreme Court properly denied the defendant’s motion for summary judgment on the basis of untimeliness.
Whether the order denying reargument was appealable and whether the court erred in adhering to the prior determination on reargument.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
McNeil v. Dixon, 9 AD3d 481, 482	Clarification that an order denying a motion for reargument may, in effect, grant reargument and adhere to a prior determination.	Used to interpret the August 9, 2005 order as effectively granting reargument but adhering to the prior ruling.
McNamara v. Rockland County Patrolmen's Benevolent Assn., 302 AD2d 435, 436	Supports the principle that an order adhering to a prior determination upon reargument is appealable.	Supported the court’s conclusion that the defendant’s appeal from the August 9, 2005 order was proper.
Chase Manhattan Mtge. Corp. v. Anatian, 22 AD3d 625, 626-627	Establishes that a defendant may appeal an order that adheres to a prior determination upon reargument.	Reinforced the appealability of the August 9, 2005 order.
Russo v. Eveco Dev. Corp., 256 AD2d 566	Defines the moment a motion is made as the date when the notice of motion is served.	Applied to determine that the defendant’s motion was timely when first served on October 21, 2004.
Pennsy Corp. v. Z S Realty Co., 256 AD2d 561, 562	Clarifies that timeliness of a motion is judged by the earliest date of service, not subsequent service.	Used to reject the argument that the timeliness should be based on the later service date of November 2, 2004.
Roosevelt Sav. Bank v. Tsotsos, 215 AD2d 547, 548	Holding that refiling or serving new motion papers for the same relief does not render the motion untimely.	Supported the conclusion that the defendant’s second service of the motion did not affect the timeliness of the original motion.

Court's Reasoning and Analysis

The court analyzed the procedural history of the defendant’s motion for summary judgment, focusing on the timing of service. It relied on established precedent that a motion is considered made when the notice of motion is served, which in this case was October 21, 2004. Although the Clerk did not accept the motion for filing due to a return date conflict with a local court rule requiring motions to be returnable on Tuesdays, the defendant promptly re-served the motion with a compliant return date of November 23, 2004. The Supreme Court had denied the motion solely based on presumed untimeliness, relying on the later service date.

The appellate court rejected this approach, holding that timeliness must be judged from the earliest service date, not the later one. It further found that the refiling of the motion papers did not invalidate the timeliness of the original motion. Consequently, the court vacated the prior order denying summary judgment and remitted the matter for determination on the merits.

Holding and Implications

The court’s final decision was to REVERSE the order dated August 9, 2005 insofar as appealed from, VACATE the May 23, 2005 order denying summary judgment on timeliness grounds, and REMIT the case to the Supreme Court, Queens County, for consideration of the defendant’s motion on the merits. Additionally, the appeal from the May 23, 2005 order was dismissed as superseded by the August 9, 2005 order.

The direct effect is that the defendant’s motion for summary judgment will be reconsidered substantively by the trial court. No new legal precedent was established beyond clarifying the application of existing procedural rules regarding motion timeliness and appealability of reargument orders.

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MICHAEL RIVERA, Respondent, v. GLEN OAKS VILLAGE OWNERS, INC., Appellant.

Ordered that the appeal from the order dated May 23, 2005 is dismissed, as that order was superseded by the order made, in effect, upon reargument; and it is further,

Ordered that the order dated August 9, 2005 is reversed insofar as appealed from, on the law, upon reargument, the order dated May 23, 2005 is vacated, and the matter is remitted to the Supreme Court, Queens County, for a determination of the merits of the defendant's motion for summary judgment; and it is further,

Ordered that one bill of costs is awarded to the defendant.

Although the order of the Supreme Court dated August 9, 2005 purported to deny the defendant's motion for leave to reargue, it is clear that the Supreme Court, in effect, granted reargument and adhered to its prior determination ( see McNeil v. Dixon, 9 AD3d 481, 482; McNamara v. Rockland County Patrolmen's Benevolent Assn., 302 AD2d 435, 436). To the extent that the Supreme Court, upon reargument, adhered to its prior determination, the order is appealable by the defendant ( see Chase Manhattan Mtge. Corp. v. Anatian, 22 AD3d 625, 626-627; McNamara v. Rockland County Patrolmen's Benevolent Assn., supra).

"A motion is made when a notice of motion is served" ( Russo v. Eveco Dev. Corp., 256 AD2d 566, citing CPLR 2211). In accordance with this rule, the defendant's motion for summary judgment was made on October 21, 2004 when it was served, by mail, on the attorney for the plaintiff ( see CPLR 2103 [b] [2]; Weinstein-Korn-Miller NY Civil Practice ¶ 2211.07). The service of the motion on October 21, 2004 was timely. The Clerk of the Supreme Court, Queens County, did not permit the filing of this motion, because the return date that had been selected, November 10, 2004, fell on a Wednesday, and was thus inconsistent with a special rule of the I.A.S. Justice that required that motions be made returnable on Tuesdays. On November 2, 2004 the defendant promptly served its motion for summary judgment a second time, setting forth a new return date of Tuesday, November 23, 2004. The motion was denied by the Supreme Court in an order dated May 23, 2005, solely on the basis of its presumed untimeliness.

It does not follow from the fact that this single motion had been served on the attorney for the plaintiff on two separate occasions that its timeliness must be judged by the later (Nov. 2, 2004), rather than the earlier (Oct. 21, 2004) date of service ( see Pennsy Corp. v. Z S Realty Co., 256 AD2d 561, 562). The mere fact that the defendant, after having served its original notice of motion on the plaintiff's attorney in a timely fashion, "filed new motion papers seeking the same relief, [was] not fatal to [such motion]" ( Roosevelt Sav. Bank v. Tsotsos, 215 AD2d 547, 548). We conclude that the defendant's motion for summary judgment was timely and therefore, we remit the matter to the Supreme Court, Queens County, for consideration of the defendant's motion on the merits.