Motion-Secondary: Maria Urena v. Jp Morgan Chase, William Li, Melissa Mathey, Sherri Fitzgerald, William Berdini

On June 30, 2016 a Motion-Secondary was filed involving a dispute between Maria Urena, and Jp Morgan Chase, Melissa Mathey, Sherri Fitzgerald, William Berdini, William Li, for Commercial - Other (employment discrimination) in the District Court of Kings County.

Preview
FILED: KINGS COUNTY CLERK 08/08/2018 04:54 PM INDEX NO. 511145/2016
NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 08/08/2018

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
------------------------------------------------------------------- x
:
MARIA URENA, :
: Index No. 511145/2016
Plaintiff, :
:
-against- : AFFIRMATION IN
: SUPPORT OF MOTION TO
JP MORGAN CHASE, : EXTEND TIME TO MOVE
WILLIAM LI, : FOR SUMMARY JUDGMENT
MELISSA MATHEY, :
:
SHERRI FITZJARRALD, and
:
WILLIAM BERDINI :
:
Defendants. :
------------------------------------------------------------------- x

Patrick M. Collins, an attorney duly licensed to practice law in the State of New York

and before this Court, hereby affirms under the penalties of perjury as follows:

1. I am a shareholder at the law firm of Ogletree, Deakins, Nash, Smoak & Stewart,

P.C. (“Ogletree Deakins”), attorneys for Defendants in this action and, as such, I am fully familiar

with the facts and circumstances underlying this Affirmation.

2. I submit this Affirmation in support of Defendants’ motion, pursuant to CPLR §

2004 and Kings County Supreme Court Uniform Civil Term Rules, Rule C.6, to extend

Defendants’ time to move for summary judgment from May 18, 2018 to July 17, 2018.

3. I have been counsel for Defendants in this action since August 2016. From August

2016 through April 2018, Nicole A. Krinsky (formerly Nicole A. Welch), then an associate at

Ogletree Deakins, also was counsel for Defendants in this action. Ms. Krinsky appeared before

this Court for every conference and motion argument in this action.

1 of 8
FILED: KINGS COUNTY CLERK 08/08/2018 04:54 PM INDEX NO. 511145/2016
NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 08/08/2018

Defendants Believed in Good Faith that Their Time to File
A Motion for Summary Judgment Was Governed by the CPLR.

4. As set forth in greater detail in the Affirmation of Nicole Ann Krinsky in support

of this motion, Defendants believed in good faith that their time to file a motion for summary

judgment extended to 120 days from the date of filing of the Note of Issue, in accordance with

CPLR 3212(a).

5. Specifically, in appearances before this honorable Court on March 14 and 15, 2018,

Ms. Krinsky participated in oral arguments and discussions regarding Plaintiff’s desire to pursue

depositions after the deadline for the close of discovery and after filing of the Note of Issue, which

was due March 19, 2018. In the course of both appearances, Ms. Krinsky contended that

Defendants’ “120-day” period to move for summary judgment would be shortened if Plaintiff

were to be permitted to conduct discovery after the Note of Issue filing. Krinsky Aff., ¶¶ 5-8.

6. Specifically, in oral argument before this honorable Court on March 14, 2018, Ms.

Krinsky urged that Plaintiff’s motion to extend the discovery deadline to allow depositions after

the filing of the Note of Issue be denied. In the scheduled conference on March 15, 2018, after the

Court had granted Plaintiff leave to take additional depositions by April 2018, Ms. Krinsky urged

that the Note of Issue filing deadline be extended until after all discovery had been completed. In

both appearances, Ms. Krinsky referred specifically to the prejudicial effect of such discovery on

Defendants’ “120-day” period to move for summary judgment after the filing of the Note of Issue.

Id. ¶¶ 5, 7.

7. CPLR 3212(a), on which Ms. Krinsky relied, sets a 120-day limitations period to

move for summary judgment after the filing of the Note of Issue. However, Kings County

Supreme Court Uniform Civil Term Rules, Rule C.6, reduces that period to 60 days.

2 of 8
FILED: KINGS COUNTY CLERK 08/08/2018 04:54 PM INDEX NO. 511145/2016
NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 08/08/2018

8. Neither Plaintiff’s counsel nor the Court corrected, took issue with or otherwise

objected to Mr. Krinsky’s references on March 14 and 15 to the “120-day” deadline to move for

summary judgment. Krinsky Aff., ¶¶ 5, 7.

9. Therefore, based on Ms. Krinsky’s review of the CPLR and her unchallenged

statements in open Court on March 14 and 15 regarding the 120-day deadline for making a

summary judgment motion, she reasonably believed that Defendants had 120 days from the filing

of the Note of Issue to do so and that the silence of Plaintiff’s counsel and the Court reflected at

least a tacit agreement or concurrence with her understanding. Id., ¶ 9.

10. Immediately following her Court appearances on March 14 and 15, 2018, Ms.

Krinsky informed me that the Note of Issue filing deadline remained March 19, 2018 and,

therefore, that Defendants’ summary judgment motion was due July 17, 2018, that is, 120 days

from March 19, 2018.

11. Plaintiff filed the Note of Issue in this case on March 19, 2018. See NYSCEF, Doc.

No. 75.

12. On March 19, 2018, Ms. Krinsky directed her assistant to update her and my

electronic calendars (Microsoft Outlook) to reflect July 17, 2018 as the deadline for filing summary

judgment in this action. A copy of Ms. Krinsky’s email to her assistant is attached as Exhibit A.

As a result, my calendar reflected July 17, 2018 as the deadline to move for summary judgment in

this case.

13. Thereafter, Ms. Krinsky and I both informed our clients, Defendants in this action,

that the motion for summary judgment was due by July 17, 2018.

3 of 8
FILED: KINGS COUNTY CLERK 08/08/2018 04:54 PM INDEX NO. 511145/2016
NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 08/08/2018

14. In reliance on Ms. Krinsky’s understanding and representations of the summary

judgment motion deadline, Defendants filed a motion for summary judgment on all causes of

action of the Amended Complaint on July 17, 2018. See NYSCEF, Doc. Nos. 86-100.

15. On July 18, 2018, Plaintiff’s counsel sent me an email asserting that the summary

judgment motion deadline was 60 days, rather than 120 days, from the filing of the Note of Issue.

Plaintiff’s counsel falsely asserted that the Court has “no discretion” to extend the time to move

for summary judgment.

16. Plaintiff’s counsel’s email asserting that the motion for summary judgment was due

60 rather than 120 days after the filing of the Note of Issue was the first time Plaintiff had made

such an assertion.

17. Prior to July 18, 2018, Plaintiff’s counsel had remained silent and thereby

acquiesced to statements made in open Court by Ms. Krinsky that Defendant’s summary judgment

motion was due 120 days after filing of the Note of Issue. Krinsky Aff., ¶¶ 5, 7, 9.

Defendants Have Demonstrated Good Cause for a 60-day
Extension of Time to File a Motion for Summary Judgment.

18. The Court has the power and discretion to extend the summary judgment deadline

upon a showing of good cause. See Kings Cty. Sup. Ct. Uniform Civ. Term Rules, Rule 6, Part C.

See also CPLR § 2004 (Court has discretion to “extend the time fixed by any statute, rule or order

for doing any act, 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.”)

19. The Court of Appeals has defined “good cause” as “a satisfactory explanation for

the untimeliness.” Brill v. City of N.Y., 2 N.Y.3d 648, 652 (2004).

20. Good cause may be found where a party or legal representative provides “a written

expression or explanation . . . evincing a viable, credible reason for delay, which, when viewed

4 of 8
FILED: KINGS COUNTY CLERK 08/08/2018 04:54 PM INDEX NO. 511145/2016
NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 08/08/2018

objectively, warrants a departure or exception to the timeliness requirement.” Surace v. Lostrappo,

176 Misc. 2d 408, 410 (Sup. Ct., Nassau Cty. 1998).

21. Here, Defendants have made an ample and sufficient showing of good cause for

their belief that the deadline to move for summary judgment was 120 days from filing of the Note

of Issue.

22. An attorney’s mistaken belief concerning a filing deadline has been held by the

Appellate Division to constitute good cause, particularly where, as here, the resulting delay was

minimal, the mistaken belief was based on the CPLR provision that generally governs motions for

summary judgement in New York State Court, the filing occurred within the 120-day limit of the

CPLR, and counsel provided a detailed explanation of the reason for the error. Moreover, in the

spirit of judicial economy, Defendants should have the opportunity to present their case for

dismissal prior to expending the resources for a trial.

23. In Obiotta v. Dukes Sys. Corp., 132 A.D.3d 421 (1st Dep’t 2015), the Appellate

Division affirmed the motion court’s grant of summary judgment, notwithstanding that

defendants’ motion had been filed 141 days after the Note of Issue filing, i.e., 21 days past the

deadline set forth in CPLR 3212(a). Defendants in Obiotta averred that the late-filed motion was

“a result of an error by their attorney in calendaring the deadline.” Id. at 421. The Appellate

Division held that “[t]he motion court did not improvidently exercise its discretion in finding good

cause for the delay based on the detailed affidavit by counsel concerning the error.” Id.

24. Similarly, in Koloski v. Metropolitan Life Ins. Co., 5 Misc. 3d 1028 (Sup. Ct., N.Y.

Cty. 2004), defendants had filed a motion for summary judgment 120 days after the note of issue

was filed, rather than 60 days as required by the court. On defendants’ application for a 60-day

extension of time to file their motion for summary judgment, the Koloski court held,

5 of 8
FILED: KINGS COUNTY CLERK 08/08/2018 04:54 PM INDEX NO. 511145/2016
NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 08/08/2018

In this case, defendants assert good cause based on their counsel’s
error in assuming that the motion would be timely if made within a
120 days of filing the note of issue. While the court, in its discretion,
may require that a motion be made in less than the 120-day period,
the error of defendants’ attorneys under the circumstances here,
when the delay was minimal, is sufficient to constitute good cause.

Id. at *2-3. Accord Thacker v. City of N.Y., 24 Misc. 3d 1216(A), at *2-3 (Sup. Ct., N.Y. Cty.

2009) (motion for summary judgment filed within 120-day deadline deemed timely,

notwithstanding prior court order setting a 60-day deadline, where “[d]efendants have presented

good cause for why the motion was brought later than 60 days, and they believed the deadline had

been adjusted to 120 days, as CPLR 3212 provides.”)

25. In addition to considering a written explanation detailing a credible reason for the

delay and the length of the delay, other factors considered by the courts on applications for

extensions of time to file motions for summary judgment include the history of the action and

whether any prejudice would result to the non-moving party as a result of the delay. See Zwecker

v. Clinch, 279 A.D.2d 572, 572 (2d Dep’t 2001) (holding that lower court “providently exercised

its discretion” in extending the 120-day deadline to file summary judgment motion based, in part,

on the history of the action and the absence of prejudice); see also Lambert v. Macy’s E., Inc., 34

Misc. 3d 1228(A) (Sup. Ct., Kings Cty. 2010), aff'd, 84 A.D.3d 744 (2d Dep’t 2011) (allowing late

motion for summary judgment where, in part, there was no prejudice to plaintiff.)

26. Here, all factors favor granting Defendants’ application for a 60-day extension

of time to move for summary judgment.

27. First, Defendants have provided the Court with a detailed explanation for their

reasonable, good-faith belief that the deadline to move for summary judgment was 120 days from

Note of Issue filing. See Krinsky Aff. Ms. Krinsky’s Affirmation details the bases for her belief

and her unchallenged statements made in open Court, in the presence of Plaintiff’s counsel,

6 of 8
FILED: KINGS COUNTY CLERK 08/08/2018 04:54 PM INDEX NO. 511145/2016
NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 08/08/2018

regarding the ostensible 120-day deadline. Defendants’ express reliance on CPLR 3212(a),

coupled with Plaintiff’s counsel’s silent acquiescence in the face of Defendants’ counsel’s

statements, constitutes good cause. See Obiotta, 132 A.D.3d at 421 (good cause demonstrated

based on detailed affidavit by counsel concerning the error).

28. Second, Defendants delay in filing was minimal and within the 120-day period set

forth in CPLR 3212(a). Defendants’ 60-day delay is the same period that the Court found to be

“minimal” in Koloski. Also, a 60-day delay is clearly minimal, given that initial motions, including

motions made in this case, are routinely and automatically adjourned by this honorable Court for

periods of longer than 60 days.

29. Third, counsel’s good faith and honest belief, when viewed in the context of the

case history, including the arguments and discussions before the Court on March 14 and 15, 2018,

as well as the fact that Defendants were subject to discovery after the filing of the Note of Issue,

“when viewed objectively, warrants a departure or exception to the timeliness requirement.”

Surace, 176 Misc. 2d at 410. See also Koloski, 799 N.Y.S.2d at 161; Thacker, 24 Misc. 3d at

1216(A), at *2.

30. Fourth, Plaintiff has suffered no prejudice as a result of the minimal filing delay.

To date, the case has not yet been placed on the trial calendar.

31. Fifth, the Defendants’ motion for summary judgment is meritorious, and the

principle of judicial economy favors disposition of unsupported claims by motion.

32. In light of the good cause shown for Defendants’ delayed filing as detailed herein

and in the Affirmation of Nicole Ann Krinsky, the minimal length of the delay and the timeliness

of the motion under the CPLR, as well as the absence of any prejudice to Plaintiff and the

meritorious nature of the motion for summary judgment, Defendants respectfully request that the

7 of 8
FILED: KINGS COUNTY CLERK 08/08/2018 04:54 PM INDEX NO. 511145/2016
NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 08/08/2018

Court extend the time to move for summary judgment by sixty (60) days, i.e.,until July 17, 2018,

Defendants'
and accept motion for summary judgment filed on that date as timely filed.

Dated: New York, New York
August 8, 2018

Patrick M. Collins

35132307.2

8 of 8

Case Info

Judge

Larry D Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

August 08, 2018

Case Filing Date

June 30, 2016

County

Parties

For full print and download access, please subscribe at https://www.trellis.law/.