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Funk v. Barry, 89 N.Y.2d 364 (Dec. 19, 1996).

COURT RULES - ENTRY OF JUDGMENTS - SIGNATURE - PROPOSED JUDGMENT - PROPOSED ORDER - SETTLEMENT

THE 60-DAY TIME LIMIT FOR THE SUBMISSION OF PROPOSED JUDGMENTS FOR SIGNATURE APPLIES ONLY WHERE THE COURT'S DECISION CONTAINS DIRECTION THAT THE ORDER IS TO BE SETTLED OR SUBMITTED ON NOTICE BEFORE IT IS ENTERED.

[SUMMARY] | [ISSUE & DISPOSITION] | [AUTHORITIES CITED] | [COMMENTARY]

SUMMARY

Section 202.48 of the Uniform Rules for the New York State Trial Courts (N.Y. CODES, RULES, REGS. § 202.48 (Consol. 1993)) provides that "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 signing and filing of the decision directing that the order be submitted." (emphasis supplied.) Plaintiff received a $5,000 judgment, plus interest, in an action for conversion. Eleven months after the court's verdict, Plaintiff's attorney submitted a proposed judgment for entry. Defendant objects that the submission was untimely because the 60-day time limit of section 202.48 was past. But Plaintiff contends that the 60-day limit does not apply to its proposed judgment because its proposal was not directed to be settled nor submitted on notice. The New York Court of Appeals heard the appeal because there was a split among the Appellate Divisions as to whether the 60-day time limit applies to proposed judgments where the court has given no direction to submit or settle the order.

ISSUE & DISPOSITION

Issue

Whether the 60-day limit for the submission of proposed judgments for signature contained in section 202.48 applies where the court's decision contains no direction to submit or settle the order.

Disposition

No. The 60-day limit applies only to proposed judgments where the court directs the order to be settled or submitted on notice before it is entered.

AUTHORITIES CITED

Cases Cited by the Court

  • Donovan v. DiPietro, 195 A.D.2d 589 (N.Y. App. Div. 1993).
  • Helfant v. Sobkowski, 174 A.D.2d 340 (N.Y. App. Div. 1991).
  • Hickson v. Gardner, 134 A.D.2d 930 (N.Y. App. Div. 1987).

Other Sources Cited by the Court

COMMENTARY

State of the Law Before Funk v. Barry

Whether the 60-day time limit for the submission of proposed judgments for signature contained in section 202.48 applied to a proposed order or judgment reflecting the disposition of a motion or matter was unsettled prior to Funk v. Barry. The uncertainty was reflected by the split in authority among the Appellate Division Departments.

The First and Second Department did not apply section 202.48 unless the judge's decision directed that the judgment be submitted for the court's signature. (See Donovan v. DiPietro , 195 A.D.2d 589 (N.Y. App. Div. 1993); Helfant v. Sobkowski, 174 A.D.2d 340 (N.Y. App. Div. 1991). Conversely, the Fourth Department applied the 60-day rule even where there was no direction to submit or settle the order and where the clerk was only required to enter judgment from the court's minutes. (See Hickson v. Gardner, 134 A.D.2d 930 (N.Y. App. Div. 1987) ).

Effect of Funk v. Barry on Current Law

The court in Funk settles the uncertainty and holds that section 202.48 does not apply to decisions that do not contain a submit or settle directive, nor does it govern the flow of entry process. The court notes that by its plain terms, section 202.48 addresses the situation where the party is expressly directed to submit or settle an order or judgment but is silent with respect to decisions that do not contain a directive to submit or settle. The court states that the rule's purpose is to prevent delay in judicial dispositions resulting from a party's failure to comply with a court's directive to draw and summit a proposed order or judgment. Thus, the rule does not apply where there is no further court involvement in the drafting process. Furthermore, the Court explains that the language of section 202.48 indicates the legislature chose not to place time restrictions on completion of ministerial recording functions.

Unanswered Questions

Now that this procedural issue has been settled, it remains to be seen if judges will respond by more frequently making the affirmative direction to submit or settle orders thus implicating the 60-day time limit.

Survey of the Law in Other Jurisdictions

This procedural issue has not been raised in other jurisdictions.

Prepared By:

  • Quentin C. Faust, 97
  • Joshua D. Fuller, 98
  • H. Marlow Green, 97
  • Pamela T. Harris, 98
  • Farah Mollo, 97
  • Phillip M. Pippenger, 98
  • Jared B. S. Steele, 98