Appellate Division and Court of Appeals Wins for GVK Successfully Opposing Plaintiffs late Application to Adjourn Defendants Summary Judgment Motion

November 23, 2020

Even in New York sometimes procedural rules matter for both plaintiffs and defendants. Whereas, historically, courts in the State of New York rarely granted defaults and/or refused to dismiss a case on procedural grounds, there is a growing trend by the courts to grant procedural-based applications notwithstanding substantive and equitable considerations.

In this matter, Plaintiff claimed to have tripped and fallen into a hole on the premises where she resided. We represented the landscape contractor who also provided the superintendent for general maintenance. Notwithstanding Plaintiff’s counsel’s repeated failures to comply with Court Orders, discovery was ultimately completed and a motion for summary judgment was timely filed. Among other things, we argued that our clients were not negligent, did not owe Plaintiff a legal duty and that none of the exceptions for independent contractor
liability set forth in Espinal V. Melville Snow Contractors, Inc., 98 N.Y.2d 136 (2002) were applicable. The other defendants made similar motions. Plaintiff, belatedly under the Court’s rules, sought an adjournment of the motions, which was denied by the lower court. Plaintiff made numerous attempts, including ex parte communications with the Court, for additional time to respond to the motions and Plaintiff finally moved by Order to Show Cause to extend her time to submit opposition to the motions and raised for the first time additional reasons why the application should be granted.

The Supreme Court Westchester County granted the Defendants’ motions for summary judgment and denied Plaintiff’s Order to Show Cause in a substantial decision setting forth the strict rules for abiding by court-imposed deadlines. Plaintiff’s counsel attempted to appeal the granting of the summary judgment motions but was forced to withdraw that application as Plaintiff had not opposed the motions. Plaintiff’s counsel then appealed the denial of the Order Show Cause that sought additional time to respond to the summary judgment motions. After
submission of the briefs and oral argument, the Appellate Division Second Department issued a unanimous ruling affirming the lower court’s denial of the application. The Second Department stated, in part, that the lower Court did not improvidently exercise its discretion, that Plaintiff failed to offer a valid excuse for the extension and that the record reflected that the need for the adjournment resulted from a lack of due diligence on the part of the Plaintiff.

Plaintiff then moved for leave to appeal to the Court of Appeals arguing, among other things, that the default was not her fault and that it was in fact her counsel’s failure. We argued in opposition that this latter argument was new and never raised by Plaintiff in the lower courts. In addition, we argued, in opposition to the application, that Plaintiff did not present any legal basis for the Court of Appeals to accept the appeal. After Plaintiff’s motion was fully briefed, the Court of Appeals dismissed Plaintiff’s motion, finding that the lower court’s order did not
finally determine the action within the meaning of the Constitution.