22 NYCRR 202.48

Solomon v Burden, 2018 NY Slip Op 07480 [2d Dept. 2018]

The plaintiffs made a second motion for an order of reference. The Supreme Court denied this motion without prejudice, finding that the plaintiffs abandoned their motion for an order of reference since they failed to submit the order of reference within 60 days after the signing and filing of the order directing submission, without showing good cause for their failure, in violation of 22 NYCRR 202.48(a). The plaintiffs then moved, inter alia, in effect, to extend the time to submit an order of reference, and for an order of reference. In the order appealed from, the court granted those branches of the plaintiffs’ motion, excusing the plaintiffs’ failure to submit some of the supporting documents the court had directed them to provide in its earlier order.

” It is within the sound discretion of the court to accept a belated order or judgment for settlement'” (Curanovic v Cordone, 134 AD3d 978, 979, quoting Russo v Russo, 289 AD2d 467, 468; see Dime Sav. Bank of N.Y. v Anzel, 232 AD2d 446). “Moreover, a court should not deem an action or judgment abandoned where the result would not bring the repose to court proceedings that 22 NYCRR 202.48 was designed to effectuate, and would waste judicial resources'” (Curanovic v Cordone, 134 AD3d at 979, quoting Meany v Supermarkets Gen. Corp., 239 AD2d 393, 394; see Zaretsky v Ok Hui Kim, 17 AD3d 455, 456; Matter of Argento v New York State Div. of Hous. & Community Renewal, 269 AD2d 443, 444; Crawford v Simmons, 226 AD2d 667).

Here, under the particular facts of this case, the interests of justice dictate that the court not be burdened with a trial where liability is certain. To hold otherwise would be contrary to the intent of 22 NYCRR 202.48 and would lead to a waste of judicial resources (see Russo v City of New York, 206 AD2d 355, 356). Accordingly, the Supreme Court providently exercised its discretion in granting that branch of the plaintiffs’ motion which was, in effect, to extend their time to submit an order of reference.

The Supreme Court also did not violate the law of the case doctrine in excusing the plaintiffs’ failure to submit some of the supporting documents the court had directed them to provide in its earlier order. Generally, a plaintiff in a foreclosure action who is awarded summary judgment on the complaint is entitled to an order of reference appointing a referee (see e.g. Citibank, N.A. v Gentile, 156 AD3d 859). Consequently, the court’s original direction, made after the plaintiffs had already been awarded summary judgment, that supporting documents be submitted along with an order of reference was a discretionary ruling to which the law of the case doctrine does not apply (see Clark v Great Atl. & Pac. Tea Co., Inc., 23 AD3d 510, 511; Latture v Smith, 304 AD2d 534; Brothers v Bunkoff Gen. Contrs., 296 AD2d 764, 765).


Abandoned: 22 NYCRR 202.48

JP Morgan Chase Bank, N.A. v Atedgi, 2018 NY Slip Op 04315 [2d Dept 2018]

In April 2013, the plaintiff moved, inter alia, for summary judgment on the complaint and for an order of reference. The appellants opposed the motion. By decision dated July 1, 2013, the Supreme Court granted the motion and directed the plaintiff to "settle order." The decision was filed with the Queens County Clerk on July 9, 2013. Atedgi subsequently sought to have the plaintiff's motion deemed abandoned pursuant to 22 NYCRR 202.48(b) on the ground that the plaintiff failed to submit its proposed order for signature within 60 days after the July 1, 2013, decision was filed, as required by 22 NYCRR 202.48(a). The court rejected Atedgi's request. Thereafter, the plaintiff submitted its proposed order, and the court signed it on September 15, 2015. This appeal is from so much of the order dated September 15, 2015, as granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the appellants and for an order of reference.


Contrary to the appellants' contention, under the circumstances of this case the Supreme Court providently exercised its discretion in declining to deem the plaintiff's motion abandoned pursuant to 22 NYCRR 202.48 (see Curanovic v Cordone, 134 AD3d 978, 979-980; Russo v City of New York, 206 AD2d 355).

22 NYCRR 202.48 [60 day rule]

22 NYCRR 202.48

47 Thames Realty, LLC v Robinson, 2014 NY Slip Op 06051 [2nd Dept. 2014]

22 NYCRR 202.48, entitled "[s]ubmission of orders, judgments and decrees for signature," states in pertinent part:

"(a) Proposed orders or judgments, with proof of service on all parties where the order is directed to be settled or submitted on notice, must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order be settled or submitted. "(b) Failure to submit the order or judgment timely shall be deemed an abandonment of the motion or action, unless for good cause shown."

Here, the so-called 60-day rule set forth in 22 NYCRR 202.48 is not applicable because the Supreme Court's direction that the defendants submit a proposed order with respect to an award of an attorney's fee did not specify that the proposed order be settled or submitted on notice (see Farkas v Farkas, 11 NY3d 300, 309; Shamshovich v Shvartsman, 110 AD3d 975, 976-977; Matter of Village of Dobbs Ferry v Stanley Ave. Props., Inc., 95 AD3d 1027

CPLR R. 5015(a); 22 NYCRR 202.48; Stipulatons

CPLR R. 5015 Relief from judgment or order
(a) On motion
(1) excusable default…

22 NYCRR 202.48 Submission of orders, judgments and decrees for signature

Klughaupt v Hi-Tower Contrs., Inc., 2009 NY Slip Op 05750 (App. Div., 2nd, 2009)

The Supreme Court providently exercised its discretion in denying the
plaintiff's motion for leave to enter a default judgment against the
defendant Lynch Park, LLC (hereinafter Lynch Park), and in granting
Lynch Park's cross motion to vacate its default in answering and for
leave to serve a late answer (see CPLR 5015). Considering the
lack of any prejudice to the plaintiff as a result of the relatively
short three-week delay in serving an answer, the existence of a
potentially meritorious defense, and the public policy favoring the
resolution of cases on the merits, the Supreme Court properly excused
the de minimis delay in answering
(see Schonfeld v Blue & White Food Prods. Corp., 29 AD3d 673; Yonkers Rib House, Inc. v 1789 Cent. Park Corp., 19 AD3d 687; Trimble v SAS Taxi Co., Inc., 8 AD3d 557; see e.g. Perez v Linshar Realty Corp., 259 AD2d 532; Swidler v World-Wide Volkswagen Corp., 85 AD2d 239, cf. Leifer v Pilgreen Corp.,AD3d,
2009 NY Slip Op 03872 [2d Dept 2009] [10-month delay in moving to
vacate default in answering or appearing, with no meritorious defense,
does not warrant vacatur of default]).

Diane v Ricale Taxi, Inc., 2009 NY Slip Op 05680 (App. Div., 1st, 2009)

Plaintiff fails to show that a judgment was ever issued, much
less served on appellant. The only exhibits attached to plaintiff's
opposition are an order granting a default judgment and directing an
inquest, with no notice of entry or affidavit of service, and a copy of
this Court's subsequent order (291 AD2d 320) involving another
defendant and containing no references to any judgment in any amount
against appellant. Accordingly, it does not appear that appellant's
one-year time limit under CPLR 5015(a)(1) to move for relief from a
judgment or order ever began to run, and appellant's motion should not
have been denied as untimely. For present purposes, appellant, who was
named a defendant only because he was one of two employees who
regularly drove the taxi involved in the accident, comes forward with
sufficient evidence that he could not have been the driver since the
accident occurred at night while he worked only days. Indeed, the
possibility that appellant had nothing to do with the accident would,
given a reasonable excuse, warrant vacatur of the default judgment in
the interest of justice even if the one-year time limit had run
(see Johnson v Minskoff & Sons, 287 AD2d 233, 236 [2001]). We accept appellant's excuse that he did not understand the import of the legal documents he was [*2]receiving and trusted his employer's assurances that it would take care of the matter for him.

Another rare, "in the interests of justice" vacatur.

Rowley v Amrhein, 2009 NY Slip Op 05834 (App. Div., 1st, 2009)

Defendant's challenge to the judgment on the ground that it
inaccurately reflects the stipulation of settlement by including terms
that are inconsistent therewith is not preserved for appellate review
since there is no record that defendant raised
any objection to plaintiff's proposed judgment, as required by 22 NYCRR 202.48(c)(2)
(see Salamone v Wincaf Props., 9 AD3d 127, 140 [2004], lv dismissed
4 NY3d 794 [2005]). Defendant's claim that he had no opportunity to
object to plaintiff's proposed judgment because he was not properly
served with a copy thereof is properly directed to Supreme Court in a
motion to vacate the judgment pursuant to CPLR 5015(a)(1), not to this
Court on appeal
(see McCue v McCue, 225 AD2d 975, 976 [1996]; Levy v Blue Cross & Blue Shield of Greater N.Y., 124 AD2d 900, 901 [1986]).

Defendant's challenges to the judgment on the bases that it
grants plaintiff a divorce on a ground that he contests and fails to
adjudicate his counterclaim allege substantive errors in the judgment
that affect his substantial rights and not mere inconsistencies with
the intentions of the court and the parties as demonstrated by the
record. Thus, review may be obtained either through an appeal from the
judgment or through a motion to vacate pursuant to CPLR 5015(a)
9 AD3d at 133-134). The record reveals that Supreme Court did not
address the grounds for divorce or defendant's counterclaim.
Accordingly, we remand the matter for further proceedings to determine
these issues.

Defendant's contention that the stipulation disposing of the
parties' economic issues is unenforceable against him is not properly
before us, since defendant never moved in Supreme Court to set aside
the stipulation (see Garrison v Garrison, 52 AD3d 927, 928 [2008]; Hopkins v Hopkins, 97 AD2d 457 [1983]). In any event, the terms of the stipulation were memorialized in [*2]a
proposed preliminary conference order that the court reviewed during
the October 30, 2007 proceedings, the stipulation was signed and
initialed by both parties, and the court expressly informed the parties
on the record that it was a binding contract. The stipulation contained
no express reservation of the right not to be bound until the execution
of a more formal agreement. To the contrary, all the essential terms
and conditions of an agreement were set forth in the stipulation, and
all that remained was their translation into a more formal document
(see Brause v Goldman, 10 AD2d 328, 332 [1960], affd 9 NY2d 620 [1961]).

The bold is mine.

22 NYCRR 202.48; Order never settled on decision is abandoned and without effect AND a case where it didn’t apply

22 NYCRR 202.48 Submission of orders, judgments and decrees for signature

Redeemed Christian Church of God Tabernacle of Restoration v Green, 2009 NY Slip Op 04125 (App. Div., 1st, 2009)

Appeal from order, Supreme Court, New York County (Norma Ruiz, J.),
entered February 5, 2008, which, to the extent appealed from, in this
action for specific performance of a contract for the sale of real
property, denied plaintiff's motion pursuant to CPLR 3211(a)(4) to
dismiss a related holdover proceeding in Civil Court or, in the
alternative, to stay the holdover proceeding or to consolidate it with
this action, and awarded defendants, sua sponte, use and occupancy,
unanimously dismissed, without costs, as academic.

It is undisputed that on February 28, 2008, the Civil Court
entered a default judgment against plaintiff in the related holdover
proceeding. As such, that proceeding has concluded, thereby rendering
moot the portion of this appeal addressing it. The appeal is also moot
to the extent it addresses the motion court's sua sponte grant of use
and occupancy to defendants. Since defendants never settled an order on
that decision, as directed by the motion court, it was abandoned and
never took effect (see Uniform Rules for Trial Cts [22 NYCRR] § 202.48(b)])

Capogrosso v Reade Broadways Assoc., 2009 NY Slip Op 04280 (App. Div., 1st, 2009)

There is no merit to plaintiff's argument that because defendant did
not settle an order within 60 days of the trial court's decision,
defendant's claims underlying the award of damages in the judgment
should be deemed abandoned pursuant to 22 NYCRR 202.48. The directive
in the decision to "[s]ettle order on notice" pertained only to so much
of the decision as determined that defendant was entitled to reasonable
attorneys' fees and referred defendant's claim therefor to a Special
Referee for a report or, upon the parties' stipulation, a
determination. The settle order directive could not have had any
pertinence to so much of the decision as awarded defendant a sum
certain, " which speaks for itself'"
(Farkas v Farkas, 11 NY3d 300, 309 [2008], quoting Funk v Barry,
89 NY2d 364, 367 [1996]). Indeed, the decision was fairly explicit in
"permit[ting]" defendant to enter a money judgment for that sum certain
without further court involvement.

The bold is mine.

CPLR § 5601 Appeal as of right to the Court of Appeals and Submission of orders

CPLR § 5601 Appeals to the court of appeals as of right

CPLR § 5601(a).  Dissent

22 NYCRR 202.48 Submission of orders, judgments and decrees for signature

The short version:
1. If there are two dissents at the Appellate Division you can appeal as of right; and
Rule 202.48's 60-day requirement does not apply to the "entry [of judgment] process."

Farkas v Farkas, 2008 NY Slip Op 07988 (Court of Appeals)

The wife appealed the Appellate Division's May 2007 order to us as of right, based on the dual dissent (see
CPLR 5601[a])
1. The husband sought leave to appeal from the same order,
which we granted. His appeal brings up for review the Appellate
Division's June 1998 order affirming the 1996 judgment (see CPLR 5501[a][1]). We now reverse the Appellate Division's May 2007 order, and uphold its June 1998 order.

The 1996 judgment and the 1999 amended judgment unquestionably
were not subject to Rule 202.48's 60-day requirement
. These judgments
carried out the 1996 decision, which directed the parties to "[s]ettle
judgment." Moreover, the decretal paragraph specifically addressing the
Chemical Bank monies provided that the wife was "entitled to enter a money judgment against [the husband] for the total amount due and owing to Chemical Bank without further order"
([emphasis added]). That is, this paragraph set out a "simple judgment
for a sum of money which speaks for itself," and therefore falls
outside the ambit of Rule 202.48 (Funk v Barry, 89 NY2d 364, 367 [1996]). As we emphasized in Funk,
the "settle" or "submit" trigger for the 60-day limitation of Rule
202.48(a) "does not purport to govern the flow of the entry process,
which is a ministerial recording function that is separate and distinct
from the procedure of obtaining the court's signature on a proposed
(89 NY2d at 368 [citations omitted]). And to further drive
home the point that no further court action was, in fact, contemplated
or [*7]required with respect to the
monies owed Chemical Bank, Supreme Court added the phrase "without
further order" to the typewritten text of the proposed counter-judgment
submitted in 1996.

1. CPLR § 5601(a) reads:

An appeal may be taken to the court of appeals as of right in an action
originating in the supreme court, a county court, a surrogate's court,
the family court, the court of claims or an administrative agency, from
an order of the appellate division which finally determines the action,
where there is a dissent by at least two justices on a question of law
in favor of the party taking such appeal.

The bold and the footnote are mine.

A curious decision.