Thank you for sharing!

Your article was successfully shared with the contacts you provided.
ALBANY � Making a sharp point that it is fed up with untimely summary judgment motions, the Court of Appeals yesterday ordered New York City to try what is apparently a meritless case. The Court called the case “another example of sloppy practice threatening the integrity of our judicial system” and reversed both the trial court and Appellate Division, Second Department. It reinstated a complaint that will likely end with dismissal or a directed verdict in favor of the City. Brill v. City of New York , 83. “Hopefully,” Chief Judge Judith S. Kaye wrote, “as a result of the courts’ refusal to countenance the statutory violation, there will be fewer, if any, such situations in the future . . . .” Also yesterday, the Court overturned the Appellate Division, Third Department, and reinstated a regulation requiring that doctors performing examinations for compensation claims be certified by specialty boards. Belmonte v. Snashall , 89, was decided strictly as a matter of statutory interpretation and dealt with the meaning of the term “board certified” in the Workers’ Compensation Law. The city case involves a mishap in Boro Park, Brooklyn, where Ona Brill fell on a sidewalk and injured her shoulder. A trial judge granted summary judgment motions by the city, notwithstanding woefully late application. The court said the plaintiff could not establish that the city was aware of any hole in the sidewalk and dismissed the claim even though the city missed the 120-day summary judgment deadline under CPLR �3212 by some seven months. The Second Department affirmed. Yesterday, the high court effectively put its foot down. It sent a strong message about the “recurring scenario regarding the timing of summary judgment motions that ignores statutory law, disrupts trial calendars, and undermines the goals of orderliness and efficiency in state court practice.” Chief Judge Kaye observed that the summary judgment rule, which dates to 1921, was amended in 1996 at the request of the judiciary. At the time, the judiciary was concerned about “11th hour summary judgment motions, sometimes used as a dilatory tactic” and persuaded the Legislature to amend CPLR 3212 (a), the chief judge said. The amendment generally requires summary judgment motions to be made within 120 days after the lawsuit is commenced, but affords judges the discretion to set an alternative limit for good cause. Proper Remedy Here, Chief Judge Kaye said, the city ignored the statute, offering no excuse, let alone a “good cause” explanation, for its tardiness. “The violation is clear,” the chief judge wrote. “What to do is the more vexing issue.” Indeed, that issue divided the Court. Chief Judge Kaye and the majority were somewhat reluctant to impose the time restriction literally and “burden the litigants and trial calendar with a case that in fact leaves nothing to try.” But they were even more reluctant to “tolerate and condone” tardiness. Consequently, the case goes back on the trial calendar where, the Court speculated, it will end with either a motion to dismiss after the plaintiff rests, or a directed verdict. The chief judge expressed hope that her Court’s stern warning makes clear “that ‘good cause’ means good cause” and that “movants will develop a habit of compliance with the statutory deadlines for summary judgment motions rather than delay until trial looms.” Judge George Bundy Smith dissented, finding no point in ordering a court to try a pointless case. He would address the tardiness issue through monetary sanctions and other remedies. “The consequence of the reversal is that a trial will commence, giving futile hope to the litigants and wasting the time of those same litigants, the jurors, the attorneys, the judge and other court personnel,” Judge Bundy Smith wrote. “Once the parties make an opening statement or plaintiffs put in their case indicating that the appropriate notice was not given, this case will again be dismissed.” Assistant Corporation Counsel Ralph Janzen appeared for the city. The plaintiff was represented by John J. Palmeri of Palmeri & Gaven in Manhattan. Fay Leoussis, chief of the City Law Department’s torts division, said yesterday that given the caseload of 40,000 pending cases, with 8,000 new torts filed annually, “it is often difficult to identify cases that are appropriate for summary judgment within 120 days of the note of issue filing.” “We believe that the State Legislature intended to give trial courts broad discretion in deciding whether to consider a late summary-judgment motion,” Ms. Leoussis said. “As a result, we are disappointed by the Court’s decision, especially since this is a meritless case.” Mr. Palmeri called his victory “pyrrhic” since his “victory” requires him to argue a losing case just so the Court of Appeals can make a point with the city’s legal department. “Thank you, Judge Kaye!” he joked. Mr. Palmeri did not come away entirely empty-handed, though, since the Court imposed an additional insult on the city: costs. It said the city must pay $500 to its adversary to cover expenses, excluding any legal fees. The Court does not have to award costs but regularly does so in civil cases. Meaning of ‘Board Certified’ Belmonte stemmed from an interpretation of the Injured Employee Protection Act by the Workers’ Compensation Board. The law says that all independent medical examinations (IMEs) must be performed by “board certified” doctors. It was enacted to stop insurers from deploying hired-gun doctors to certify that a workers’ injury was not covered by workers’ compensation. Since the Legislature did not define “board certified,” the Workers’ Compensation Board adopted an interpretation that limited that category of doctors to those recognized by the American Board of Medical Specialties or the American Osteopathic Association. Six Capital District physicians specializing in occupational medicine challenged that interpretation, prompting Albany Supreme Court Justice Joseph R. Cannizzaro to strike down the rule. Justice Cannizzaro found no evidence that “even remotely suggests that there is a correlation between a physician being certified by the ABMS or AOA and his honesty and competency to perform an IME.” He said the board was not entitled to any judicial deference in its interpretation. The Third Department affirmed in an opinion by Justice Thomas E. Mercure. Yesterday, the Court of Appeals reversed 7-0. In an opinion by Judge Carmen Beauchamp Ciparick, the Court said that while this is not a matter where the Workers’ Compensation Board interpretation is entitled to deference, the board is nonetheless correct in its interpretation. That conclusion mirrors a decision last year by the First Department in Matter of Rosenblum v. New York State Workers’ Compensation Board, 309 AD2d 120. Assistant Solicitor General Kathleen M. Treasure represented the Workers’ Compensation Board. Robert E. Ganz of Ganz & Wolkenbreit in Albany appeared for the doctors. � John Caher can be reached at [email protected] .

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.