        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

200.2
CA 14-01356
PRESENT: PERADOTTO, J.P., CARNI, SCONIERS, AND WHALEN, JJ.


AINSWORTH M. BENNETT, INDIVIDUALLY AND ON
BEHALF OF THE ESTATE OF VIRGINIA R. BENNETT,
DECEASED, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

ST. JOHN’S HOME AND ST. JOHN’S HEALTH CARE
CORPORATION, DEFENDANTS-RESPONDENTS.
(APPEAL NO. 2.)


DAVID E. WOODIN, LLC, CATSKILL (DAVID E. WOODIN OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

UNDERBERG & KESSLER LLP, ROCHESTER (MARGARET E. SOMERSET OF COUNSEL),
FOR DEFENDANTS-RESPONDENTS.

ANDREW B. STRICKLAND, WASHINGTON, DC, FOR AARP FOUNDATION LITIGATION,
LONG TERM CARE COMMUNITY COALITION, MFY LEGAL SERVICES, INC. AND
DISABILITY RIGHTS NEW YORK, AMICUS CURIAE.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Monroe County (William P. Polito, J.), entered January 28,
2014. The order and judgment granted defendants’ motion for summary
judgment dismissing the complaint.

     It is hereby ORDERED that the order and judgment so appealed from
is affirmed without costs.

     Memorandum: Plaintiff, individually and as the administrator of
the estate of his wife, Virginia R. Bennett (decedent), commenced this
action pursuant to Public Health Law § 2801-d, alleging that decedent
was deprived of certain rights and benefits derived from federal and
state regulations while she was a patient in a nursing home operated
by defendants. Supreme Court granted defendants’ motion for summary
judgment dismissing the complaint, and plaintiff appeals.

     Plaintiff contends that the motion should have been denied as
untimely because it was made more than 120 days after the filing of
the note of issue without a showing of good cause for the delay (see
generally CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648, 652).
Plaintiff waived that contention, however, by expressly consenting to
the timing of the motion before it was made (see Stephen v Brooklyn
Pub. Lib., 120 AD3d 1221, 1221; see generally Hadden v Consolidated
Edison Co. of N.Y., 45 NY2d 466, 469).
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                                                         CA 14-01356

     While we agree with our dissenting colleague that the court was
not required to accept the express stipulation of the parties to
extend the 120-day deadline in CPLR 3212, we note that the court in
fact did so in advance of the motion (cf. Coty v County of Clinton, 42
AD3d 612, 614). Moreover, unlike our dissenting colleague, we do not
view the timing requirements applicable to motions for summary
judgment as a matter of public policy that may not be affirmatively
waived by a party (see Mitchell v New York Hosp., 61 NY2d 208, 214).

      With respect to the merits, we conclude that defendants
established as a matter of law that they provided appropriate care and
treatment to decedent and did not violate any of the various federal
and state regulations identified by plaintiff as the bases for this
action, and plaintiff failed to raise a triable issue of fact in
opposition (see Gold v Park Ave. Extended Care Ctr. Corp., 90 AD3d
833, 834; see generally Zuckerman v City of New York, 49 NY2d 557,
562).

     All concur except WHALEN, J., who dissents and votes to reverse in
accordance with the following memorandum: I respectfully dissent
because I disagree with the majority’s conclusion that plaintiff
waived his contention that defendants’ motion for summary judgment
should have been denied as untimely. I would therefore reverse the
order and judgment, deny defendants’ motion, and reinstate the
complaint.

     Where, as here, Supreme Court does not schedule a deadline for
filing motions for summary judgment, “such motion shall be made no
later than one hundred and twenty days after the filing of the note of
issue, except with leave of court on good cause shown” (CPLR 3212 [a];
see O’Brien v Bainbridge, 109 AD3d 1206, 1208; Jones v Town of Le Ray,
28 AD3d 1177, 1178). The moving party has the burden of demonstrating
good cause, and “[n]o excuse at all, or a perfunctory excuse, cannot
be ‘good cause’ ” (Brill v City of New York, 2 NY3d 648, 652; see
LoGrasso v Myer, 16 AD3d 1089, 1089-1090). In that context, 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”
(Brill, 2 NY3d at 652; see O’Brien, 109 AD3d at 1208).

     The Court of Appeals has explained that requiring the movant to
show good cause serves “the purpose of the amendment,[ i.e.,] to end
the practice of eleventh-hour summary judgment motions” (Brill, 2 NY3d
at 652), and that “statutory time frames . . . are not options, they
are requirements, to be taken seriously by the parties. Too many
pages of the Reports, and hours of the courts, are taken up with
deadlines that are simply ignored” (Miceli v State Farm Mut. Auto.
Ins. Co., 3 NY3d 725, 726-727).

     Here, the court did not set a deadline for motions, and the note
of issue was filed on April 20, 2012, which meant that all summary
judgment motions were to be filed within 120 days and no later than
August 18, 2012 (see CPLR 3212 [a]). The motion for summary judgment
was not filed until June 28, 2013, which is just over 10 months beyond
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                                                         CA 14-01356

the 120-day limit (see O’Brien, 109 AD3d at 1208). Defendants’ moving
papers did not include any explanation for the delay, and the reason
set forth by the court during proceedings on May 13, 2013 was simply
that defendants may have a meritorious motion and, thus, that
determining the motion might simplify the issues at trial, which is
the same excuse that was rejected by the Court of Appeals in Miceli
and Brill (see Miceli, 3 NY3d at 727; Brill, 2 NY3d at 652-653). I
therefore conclude that the motion should not have been entertained by
the court.

     In my view, the fact that the parties entered a stipulation to
allow defendants to make a late motion for summary judgment does not
alter the above analysis inasmuch as “[the] parties’ stipulation is
insufficient to excuse [a] delay” (Coty v County of Clinton, 42 AD3d
612, 614). “Unless public policy is violated, the parties are free to
chart their own procedural course, and may fashion the basis upon
which a particular controversy will be resolved” (Loretto-Utica Props.
Corp. v Douglas Co., 226 AD2d 1058, 1059 [internal quotation marks
omitted]; see Mitchell v New York Hosp., 61 NY2d 208, 214). However,
as articulated by the legislature and the Court of Appeals, it is
public policy to strictly enforce the 120-day limit for summary
judgment motions in the absence of leave of court on good cause shown.
CPLR 3212 (a) was amended by the legislature with “the purpose . . .
to end the practice of eleventh-hour summary judgment motions” (Brill,
2 NY3d at 652), which the Court of Appeals described as a “sloppy
practice threatening the integrity of our judicial system” (id. at
653). “[T]he Court of Appeals [has] clearly indicated that the
120-day statutory time frame contained in CPLR 3212 (a) is a strict
requirement ‘to be taken seriously by the parties’ ” (Coty, 42 AD3d at
614, quoting Miceli, 3 NY3d at 726) and “must be ‘applied as written
and intended’ ” (id., quoting Brill, 2 NY3d at 653). Although parties
may stipulate away some statutory rights (see Mitchell, 61 NY2d at
214), under CPLR 3212 (a) and the decisions of the Court of Appeals in
Brill and Miceli, “the court has the exclusive authority to extend the
statutory deadline; mutual agreement of the parties without court
approval will not suffice” (Coty, 42 AD3d at 614), and the court may
not approve of the delayed motion without a showing of good cause (see
CPLR 3212 [a]; Brill, 2 NY3d at 652). Thus, contrary to the
majority’s position, litigants cannot waive the statutory requirement
that good cause be shown in order to permit the late filing of a
motion pursuant to CPLR 3212, and the statute does not permit courts
to accept a stipulation of the parties “in advance of the motion”
where there is no showing of good cause. I therefore conclude that,
while a court may accept a late motion for summary judgment “pursuant
to both a stipulation and the court’s own order, upon a showing of
‘good cause’ ” (Jim Beam Brands Co. v Tequila Cuervo La Rojena, S.A.
De C.V., 85 AD3d 556, 556-557 [emphasis added]), a stipulation alone
is not sufficient to extend the deadline imposed by the statute (see
Coty, 42 AD3d at 614).

     As discussed above, the parties’ stipulation in the present case
was accompanied by acquiescence of the court, but without any showing
of good cause for the delay. In my view, “[i]f this practice is
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                                                        CA 14-01356

tolerated and condoned, the ameliorative statute is, for all intents
and purposes, obliterated” (Brill, 2 NY3d at 653). The courts should
heed the admonition of the Court of Appeals and not countenance such
statutory violations (see id.).




Entered:   May 8, 2015                         Frances E. Cafarell
                                               Clerk of the Court
