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Decided on April 4, 2006
Civil Court, Richmond County

3034/05
Plaintiff: Geevarghese Panicker, Pro Se. Counsel for Defendant: Eric Horn, Esq., Connors & Connors, P.C., 766 Castleton Avenue, Staten Island, NY 10310 (718) 442-1700
Philip S. Straniere, J.
The defendant, Northfield Savings Bank, moves for an order dismissing the plaintiff's complaint pursuant to CPLR 3211 or, in the alternative, for an order granting summary judgment pursuant to CPLR 3212.
The plaintiff opposes the motion on the grounds that both motions are untimely and further contends that the defendant is not entitled to summary judgment due to the presence of triable issues of fact.
The plaintiff commenced this action to recover monies due to alleged unauthorized electronic transfers from his account maintained at Northfield Savings Bank.
The defendant contends that the plaintiff did not timely notify the defendant, pursuant to its disclosure policies, that the transfers were unauthorized and is therefore not liable for the withdrawals. The plaintiff alleges that he properly notified the bank when he discovered that the transfers were made, and that he is therefore entitled to be reimbursed for the
amounts withdrawn from his account. The plaintiff contends that he has raised sufficient questions of fact to warrant a trial of the action. [*2]
1. Is the defendant's summary judgment motion timely?
The plaintiff commenced this action on March 31, 2005 with the service of a summons and complaint. Issue was joined on April 19, 2005 with the filing and service of the answer by the defendant. Since the plaintiff was acting pro se at the time the action was commenced, the action was placed on the trial calendar upon the defendant's filing the answer with this Court, first appearing on the calendar on May 3, 2005. Because the plaintiff was pro se, the rules of the Civil Court did not require that a Notice of Trial be filed in order to obtain a calendar number to place the action on the trial calendar.
In determining the issue of whether the defendant's summary judgment motion is timely, it is necessary to identify the triggering event that initiates the time period within which the defendant may make the motion.
It would appear that CPLR 3212 clearly identifies that triggering event by stating that a summary judgment motion "... shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown." In 1996, the legislature amended this section to add the 120 day limit, undoubtedly in an effort to stem the tide of summary judgment motions, often made on the "eve of trial." However, even after the amendment established the 120 day maximum, motions continued to abound, resulting in a plethora of creative legal arguments and judicial holdings which sought to rely upon and interpret the statute's remaining exception that a late motion may be made "with leave of court on good cause shown."
In employing a Machiavellian approach, lawyers who believed that they could benefit from summary judgment argued that "good cause" is established when one makes a prima facie showing that one can prevail on the motion, no matter how late the motion or the reason for the delay--that is, if one can win the motion then one should be allowed to make the motion. In addition, the often tantalizing notion that deciding even a late motion would contribute to overall judicial economy by expeditiously resolving the case did not sufficiently provide the nexus to "good cause".
With the Courts and legal community still struggling with lingering questions, the New York Court of Appeals responded with its decision in Brill v City of New York, 2 NY3d 648 in an apparent response to the clarion call for a definition of "good cause." At the outset, the Court noted in Brill that despite the legislature's efforts to impose limits on the timeliness of the motion, "...summary judgment motions persisted, with the statutory good cause' requirement a new litigation battleground." The Court pointed to the disparity among the courts, with some concluding that good cause requires an initial showing of the reason for the delay, while other courts holding good cause is established with a showing that the motion has merit. In resolving the dispute, the Court concluded that "...'good cause' in CPLR 3212 (a) requires a showing of good cause for the delay in making the motion - a satisfactory explanation for the untimeliness - rather than simply permitting meritorious, nonprejudicial filings, however tardy" (ibid at page 652). [*3]
In the face of CPLR 3212 and Brill, one could conclude that the defendant's motion is untimely. Although Civil Court does not utilize Notes of Issue to calendar cases, but rather Notices of Trial, one could argue that the filing of the Notice of Trial is tantamount to a filing of a Note of Issue. However, the analysis becomes more complex where, as in this case, a Notice of Trial has not been filed because one party has appeared pro se. The motion was dated and served on August 25, 2005. Since a motion is deemed made when it is served (see Siegel, Practice Commentaries McKinney's Consolidated Laws of NY Book 7B CPLR C2211:4), and the defendant served the motion on the plaintiff on August 25, 2005 (128 days after the date that the action was assigned a calendar number in lieu of filing a notice of trial), the motion would be considered untimely if the date the action was calendared is the triggering event for the window period of the summary judgment motion. However, this is where the first of several conundrums is created.
In speaking of the filing of a Note of Issue, the legislature, perhaps unwittingly, ignored the process by which actions are calendared in the Civil Court. In Supreme Court, the action is placed on the calendar by filing a Note of Issue, which releases the sand in the statutory hour glass for the summary judgment motion. However, in Civil Court, there are several ways in which to calendar an action, and they vary depending upon whether a litigant is represented by counsel or has elected to proceed pro se. The rules governing the calendaring of actions in the Civil Court may be found in Civil Court Act

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