For how long may a plaintiff opposing a defendant's motion for summary judgment on the serious injury threshold delay resolution of it?

The instant case implicates an issue of whether a stipulation to adjourn a motion with a new schedule for filing papers should routinely be approved by the court after the parties previously committed to adhering to a filing schedule upon a prior adjournment and failed to comply with it, when the stipulation does not even conform to the court's rules.

This action was commenced on December 18, 2019, by the filing of a summons and complaint. Plaintiff alleged that she had been injured on November 30, 2018, when a vehicle owned and operated by Defendant struck her at the intersection of Jefferson Avenue and Tompkins Avenue in Kings County.

Issue was joined on January 30, 2020, when Defendant served and filed an answer. Motion practice with regard to discovery consumed much of the time until a note of issue was [*2]filed by Plaintiff on December 27, 2022.

On February 7, 2023, Defendant moved for summary judgment dismissing the complaint, alleging that Plaintiff failed to meet Insurance Law § 5102 (d)'s requisite serious injury threshold. The notice of motion provided that answering papers were to be filed at least seven days prior to the return date. The motion papers from Defendant were not that complex. They comprised the following:

NYSCEF Doc No. 63: Notice of Motion (2 pages)

NYSCEF Doc No. 64: Affirmation in Support (12 pages)

NYSCEF Doc No. 65: Statement of Material Facts (5 pages)

NYSCEF Doc No. 66: Exhibit A — Summons and Complaint (7 pages)

NYSCEF Doc No. 67: Exhibit B — Answer (20 pages)

NYSCEF Doc No. 68: Exhibit C — Bill of Particulars (13 pages)

NYSCEF Doc No. 69: Exhibit D — IME Report (17 pages)

NYSCEF Doc No. 70: Exhibit E — MRI Review (13 pages)

NYSCEF Doc No. 71: Exhibit F — Plaintiff's EBT (88 pages)

According to court records, the motion was calendared for Wednesday, May 17, 2023, and administratively adjourned to Friday, May 19, 2023, since this Court's primary motion day was shifted from Wednesday to Friday.

On May 17, 2023, there was filed with the Court a stipulation of the parties to adjourn the motion to Wednesday, July 19, 2023. It provided as follows:

IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned, attorneys of record for plaintiff, HADASS WADE, and defendant, BHESH BAHADUR KHADKA, that the Defendant's Summary Judgment Motion (Motion Seq. #004) currently set to be heard on Friday, May 19, 2023, is hereby adjourned until Wednesday, July 19, 2023. Plaintiff will file their Opposition papers by Friday, July 7, 2023, and Defendant's Reply to be filed by Monday, July 17, 2023.

The stipulation was not in conformity with this Court's Part Rules since it was filed later than three days prior to the motion date; also, the stipulation was noncompliant since, inter alia, it failed to identify which party sought the adjournment and the good cause reason for it (see New York State Unified Court System, Hon. Aaron D. Maslow: Part 2 Rules, Part I [Motions & Special Proceedings], Subpart D [Adjournments], §§ 1 [Standards and Procedures for seeking adjournments], 3 [Contents of applications for adjournments and stipulations of adjournment], https://ww2. nycourts.gov/courts/2jd/kings/civil/MaslowRules.shtml).

"If an application for adjournment or stipulation of adjournment has not been submitted in the foregoing manner, and counsel still wishes to apply for an adjournment, application shall be made only in person on the scheduled motion date" (id. § 2 [late requests for adjournment]). On May 19, 2023, when the motion was called, an oral application to adjourn was granted, and an order was issued as follows:

Defendant's motion for summary judgment is adjourned to [Friday,] 9/29/23.

Opposition to be filed by 9/1/23.

Reply to be filed by 9/15/23.

Please review Part rules re: threshold motions.

Subsequently, the Court administratively adjourned the motion to Friday, November 3, 2023.

On October 4, 2023, there was filed with the Court a stipulation of the parties to adjourn the motion again, to [Friday,] December 15, 2023. The stipulation provided:

IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned, attorneys of record for plaintiff, HADASS WADE, and defendant, BHESH BAHADUR KHADKA, that the Defendant's Summary Judgment Motion (Motion Seq. #004) currently set to be heard on November 3, 2023, is hereby adjourned until December 15, 2023. Plaintiff will file their Opposition papers by November 28, 2023, and Defendant's Reply to be filed by December 13, 2023.

Again, the stipulation of adjournment submitted by the parties was not in conformity with this Court's Part Rules — despite the Court having noted in open court the noncompliant nature of the previous stipulation.

This Court's Part Rules provide with respect to adjournments of motions as follows:

PART I. MOTIONS & SPECIAL PROCEEDINGS

. . .

Subpart D. Adjournments

1. Standards and procedures for seeking adjournments. All adjournments are at the discretion of the Court. Applications for adjournments and stipulations of adjournment shall be submitted through NYSCEF or by filing a paper copy with the Court at Motion Support, Room 227, at 360 Adams Street (with a copy served upon all other counsel or pro se parties). The deadline for filing such applications for adjournments and stipulations of adjournments shall be 5:00 p.m. of the third day prior to the scheduled motion date. If said third day prior to the scheduled motion date is a Saturday, Sunday, or holiday, the deadline shall be 5:00 p.m. of the last business day before said third day prior to the scheduled motion date. All applications for adjournments and stipulations of adjournment submitted in the aforesaid manner shall also be emailed to the Part Clerk and the law clerks.

2. Late requests for adjournments. If an application for adjournment or stipulation of adjournment has not been submitted in the foregoing manner, and counsel still wishes to apply for an adjournment, application shall be made only in person on the scheduled motion date.

3. Contents of applications for adjournments and stipulations of adjournment. Applications for adjournments and stipulations of adjournment must (a) identify which party seeks the adjournment, (b) set forth the good-cause reason for it, (c) provide details of any prior adjournments of the motion, and (d) list future motion calendar dates for other sequenced motions in the case. Under no circumstances shall [*3]counsel stipulate to adjourn a motion to a specific date; since adjournments are at the discretion of the Court, if a motion is adjourned the Court will determine the adjourned date.

4. Inquiries regarding stipulations of adjournment. Counsel are not to assume that an application for adjournment or a stipulation of adjournment will be approved. Inquiries as to whether an application for adjournment or a stipulation of adjournment has been approved shall be made to the Part Clerk, if counsel has not yet received a response.

While the instant stipulation was submitted more than three days prior to the scheduled motion date, it did not "(a) identify which party seeks the adjournment, (b) set forth the good-cause reason for it, (c) provide details of any prior adjournments of the motion, and (d) list future motion calendar dates for other sequenced motions in the case" (id. § 3). The stipulation also ignored the Rules provision stating, "Under no circumstances shall counsel stipulate to adjourn a motion to a specific date; since adjournments are at the discretion of the Court, if a motion is adjourned the Court will determine the adjourned date" (id.). The reason that adjournment dates are not to be included is that if an adjournment is granted, the date specified in the stipulation may already be closed out with the maximum motion slots having already been filled.

Since Plaintiff has yet to file her opposition to Defendant's motion, this Court assumes it was Plaintiff who sought the adjournment. In any event, the good-cause reason was not set forth.

There is a broader issue here. As a matter of public policy and efficient supervision of litigation, should a court routinely grant every motion adjournment request, especially when the parties committed to a filing schedule which has clearly not been complied with? This Court replies in the negative.

"The granting of an adjournment for any purpose rests within the sound discretion of the Supreme Court (see Matter of Steven B., 6 NY3d 888, 889 [2006]; Miglionico v Homeowners' Assn., Inc., 184 AD3d 818, 819 [2020]). Further, the court has the discretion to grant an extension of time to file opposition papers 'upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed' (CPLR 2004; see Leader v Steinway, Inc., 186 AD3d 1207, 1209 [2020]). 'In exercising its discretion, a court may consider such factors as the length of the delay, the reason or excuse for the delay, and any prejudice to the party opposing the motion' (Kim & Bae, P.C. v Sunki Lee, 173 AD3d 990, 992 [2019]; see Tewari v Tsoutsouras, 75 NY2d 1, 12 [1989])." (U.S. Bank v Sokolof, 201 AD3d 839, 840-841 [2d Dept 2022].

"It is not an improvident exercise of discretion to deny an adjournment where the need for such a request is based on the movant's failure to exercise due diligence (see Matter of Breaker v ACS-Kings, 129 AD3d 715, 716 [2015]). [¶] In addition, ' "[w]hile a court has the discretion to grant an extension of time to file opposition papers, it must be upon a showing of good cause (see CPLR 2004). The delinquent party must offer a valid excuse for the delay" ' (Tec-Crete Tr. Mix Corp. v Great Am. Ins. Co. of NY, 167 AD3d 806, 807 [2018], quoting Adotey v British Airways, PLC, 145 AD3d at 750; see Kubicsko v Westchester County Elec., Inc., 116 AD3d 737, 739 [2014])." (Miglionico v Homeowners' Assn., Inc., 184 AD3d 818, 820 [2d Dept 2020].)

"The Supreme Court providently exercised its discretion in refusing to consider the late submission of the affirmation of the orthopedic surgeon, submitted after the motion had been adjourned four times at the plaintiffs' request, and marked final" (O'Neil v GEICO, 30 AD3d 390 [2d Dept 2006].

In the instant situation, the original return date calendared was May 17, 2023, so Plaintiff's papers were due May 10, 2023 (see CPLR 2214 [b]). This already constituted a generous amount of time (more than three months) for Plaintiff to file her responsive papers inasmuch as the motion was filed by Defendant on February 7, 2023. Then, Plaintiff received an extension (from May 10, 2023) to July 7, 2023, per the May 17, 2023 stipulation. Even after the stipulation was found noncompliant by the Court, Plaintiff was granted a further extension to September 1, 2023, when the Court granted an adjournment on May 19, 2023. In practical terms, Plaintiff received another extension to file her papers when this Court administratively adjourned the motion from the September 29, 2023 calendar to November 3, 2023.

At some point, a court must be emphatic and determine that a party must be held to his or her commitment to file motion opposition papers by the designated date. In other words, there are no further adjournments. In this case, that moment is now. In part, this is because the stipulation of October 4, 2023 failed to even identify the party requesting the adjournment (although it probably is Plaintiff), the good-cause reason for it, and an acknowledgment of previous adjournments. This is not a matter of merely granting a one-month adjournment. It is a matter of affording Plaintiff more than six months extra time to file papers which were due much earlier this year. Clearly Plaintiff has failed to demonstrate the exercise of due diligence in assembling her opposition papers and has abrogated prior commitments to submit opposition papers by agreed-upon deadlines (see Miglionico, 184 AD3d 818).

There is no automatic right to a stipulated adjournment of a motion: "Stipulations of adjournment of the return date made by the parties shall be in writing and shall be submitted to the assigned judge. Such stipulation shall be effective unless the court otherwise directs." (22 NYCRR 202.8 [d] [emphasis added].)

Courts possess the authority to enforce their rules (see Basie v Wiggs, 173 AD3d 1127 [2d Dept 2019]; Appleyard v Tigges, 171 AD3d 534 [1st Dept 2019]; Maddus v Bowman, 12 AD2d 626 [2d Dept 1960]; Brick&Mortar LLC v Momo Sushi Inc., 79 Misc 3d 1239(A), 2023 NY Slip Op 50838(U) [Sup Ct, Kings County 2023] [rule requiring submission of referenced electronically-filed documents as exhibits to motion papers]; Stipa Sprecase v Tenreiro, 2023 WL 3972435 [Sup Ct, NY County 2023] [rules requiring motions to reargue or renew be made by order to show cause]; Latorre v Rahman, 2022 NY Slip Op 32044(U) [Sup Ct, NY County 2022]; Bedingfield v Dairymade Farms, Inc., 46 Misc 2d 146, 148 [Sup Ct, Suffolk County 1965] ["That rule is consistent with the inherent power of the Court to control its business."]; Scully v Jefferson Truck Renting Corp., 43 Misc 3d 48 [Sup Ct, Kings County 1964]; cf. Crawford v Liz Claiborne, Inc., 11 NY3d 810 [2008]).

The purpose of the Individual Assignment System (IAS) is "to give trial judges greater control over their cases and to move cases to disposition more expeditiously" (Basetti v Nour, 287 AD2d 126, 134 [2d Dept 2001]). The orderly disposition of cases is important for the efficient operation of our judicial system (see id. at 134). Moreover, compliance with individual part rules is necessary to implement these policy goals. This Court reviews motions in advance of the date for oral argument (see Matter of Court's Discharge of Its Responsibilities Pursuant to 22 NYCRR § 100.3 (D) (2), (3), — Misc 3d —, 2023 NY Slip Op 23258, *1 [Sup Ct, Kings [*4]County 2023]). The purpose for this Court's rules governing adjournments is to avoid wasting this Court's time in reviewing motions in advance when they will not be heard due to an adjournment. If an adjournment is sought, the reason for it must be disclosed so that the Court can determinate whether to prepare a review of the motion. The failure to disclose the reason for an adjournment frustrates the Court's preparation. Here, not only did the failure to inform the Court of the reason for a requested adjournment frustrate the efficient preparation for considering the motion, it displayed a cavalier attitude toward the Court's organized procedures.

Preparing opposition to a defendant's serious injury threshold summary judgment motion is not that difficult provided that counsel has maintained contact with the client and her treating physicians. Once an action for personal injuries resulting from a motor vehicle has been commenced, it behooves counsel to maintain said contact. Therefore, once the inevitable serious injury threshold summary judgment motion is filed by the defendant, preparing opposition papers entails a review of the file and another round of consultations with the client and the physicians. In the case at bar, there is only one plaintiff and one defendant. This reduced the amount of work needed to be performed by counsel. There are no multiple IMEs to deal with. Defendant submitted one IME and one doctor reviewed the MRI films. Plaintiff already underwent an EBT so counsel should have been prepared to respond to arguments regarding it in Defendant's papers. If contact had been maintained with the client and the physicians, preparing responsive papers would not have been difficult. The motion is not that complex.

Parties in litigation unfortunately endured delays resulting from the Covid pandemic. With the court system endeavoring to clear up the backlog, unjustified non-Covid related delays should not be countenanced. Cases must move along, and dispositive motions such as the instant one seeking summary judgment dismissing the complaint should be resolved one way or the other — either the motion will be granted and the case dismissed or the motion will be denied and the case will continue moving toward trial — in order to make way for other existing cases needing motion determinations and for new cases which are entering the system.

No compelling reason has been set forth in the October 4, 2023 stipulation for adjourning Defendant's motion for summary judgment. The routine submission of incomplete stipulations of adjournments is not acceptable.

The within motion, Sequence #4, shall remain calendared for oral argument on November 3, 2023. The stipulation dated and filed October 4, 2023 is rejected. The Clerk shall enter this in the Court's records and annotate them further that the stipulation was not in conformity with IAS Part 2's rules.

Plaintiff failed to comply with the first deadline of May 10, 2023. It failed to comply with the last operate deadline of September 1, 2023 set forth in the May 19, 2023 order. One last deadline is being set herein. Plaintiff shall file her opposition by October 13, 2023, and any reply by Defendant shall be filed by October 20, 2023. This will afford the Court sufficient time to review the papers in advance for the November 3, 2023 argument. In addition to entering into the Court's records that the motion will be heard on November 3, 2023, the Clerk shall annotate this final set of deadlines for any further papers. Papers filed after the deadline will not be considered.

Finally, this Court notes that Defendant — whose motion submission comprised 177 pages — must also comply with IAS Part 2's Rules. "Hardcopies. For motions where the papers are filed on NYSCEF, hardcopies of a party's papers shall be submitted in the event that the party's papers exceed 75 pages. This hardcopy submission -- which shall include a contents list --[*5] shall be made at least nine calendar days prior to the date on which the motion is calendared, in order to facilitate review in advance by the Court." (New York State Unified Court System, Hon. Aaron D. Maslow: Part 2 Rules, Part I [Motions & Special Proceedings], Subpart B [Papers], § 3 [Hardcopies], https://ww2. nycourts.gov/courts/2jd/kings/civil/MaslowRules.shtml.)