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[Case
Commentary by LII Editorial Board]
4 No. 262 [1996 NY Int. 248]
Decided December 19, 1996
TITONE, J.:
The question presented for
our review is whether the 60-day time limit for the submission of proposed
judgments for signature contained in 22 NYCRR 202.48 applies where the
court's decision contains no direction to submit or settle the order.
We resolve a conflict among the Appellate Division Departments and conclude
that the 60-day period applies only where a proposed judgment or order
explicitly directs that it be settled or submitted for signature.
Accordingly, the order of the Appellate Division should be reversed.
Following a bench trial,
Supreme Court found in favor of plaintiff in the amount of $5,000 on his
cause of action for conversion, with interest to be computed from a specified
date. The court did not direct any party to settle or submit the
judgment for signature.
Eleven months after the
court's verdict, plaintiff's attorney submitted a proposed judgment for
entry. Defendant objected on the ground that the proposal was untimely.
Plaintiff then moved for an order permitting entry of the judgment.
Defendants cross-moved for an order dismissing the action as abandoned
pursuant to 22 NYCRR 202.48, which contains a 60-day time limit for "submission
of orders, judgments and decrees for signature." The court granted
plaintiff's motion and denied defendants' cross motion.
The Appellate Division reversed
and dismissed the action. The court acknowledged a split in authority
among the Appellate Division Departments, but followed its own holding
in Hickson v Gardner (134 AD2d 930), which provides that the 60-day time
limit of section 202.48 applies even where no direction to submit or settle
an order or judgment is contained in the court's decision. Noting
that delay will only be excused for good cause (see, 22 NYCRR 202.48[b])
and that plaintiff failed to show good cause for the 11-month delay in
submitting a proposed judgment, the court dismissed the action as abandoned.
This Court granted plaintiff's motion for leave to appeal, and we now reverse
and reinstate the order of Supreme Court.
Section 202.48 of the Uniform
Rules for the New York State Trial Courts (22 NYCRR 202.48) speaks to the
period within which a proposed order or judgment reflecting the disposition
of a motion or matter must be drawn by a party. That section provides
that "[p]roposed 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 submitted" (22 NYCRR 202.48[a] [emphasis supplied]). Failure
to submit the order or judgment as directed within that timeframe constitutes
an abandonment of the motion or action unless good cause for the delay
is shown (id., 202.48[b]).
Plaintiffs rely on precedent
emanating from the First and Second Departments which holds generally that
the 60-day time limit is not triggered unless the judge's decision directs
that the judgment be submitted for the court's signature (see, Donovan
v DiPietro 195 AD2d 589 [2d Dept]; Helfant v Sobkowski, 174 AD2d 340 [1st
Dept]). Defendants cite contrary precedent of the Fourth Department
which holds that the 60-day rule is applicable even where there is no direction
to submit or settle the order and where "all that is required is for the
clerk to enter judgment from the court's minutes" (Hickson v Gardner, 134
AD2d 930, 931). We are persuaded by the language and purpose of the
rule that the interpretation advanced by plaintiff is correct.
By its plain terms, section
202.48(a) speaks to the circumstances where the court's decision expressly
directs a party to submit or settle an order or judgment. When a
decision ends with the directive to "submit order," the court is generally
directing the prevailing party to "draw[] the order and present[] it to
the judge * * *, who looks it over to make sure it reflects the decision
properly and then signs or initials it" (Siegel, Practice Commentaries,
McKinney's Consol Laws of NY, Book 7B, CPLR 2220, at 170). This procedure
typically calls for no notice to the opponent (id.).
A directive to "settle,"
by contrast, "is reserved for more complicated dispositions, such as orders
involving restraints or contemplating a set of follow-up procedures" (id.).
Because the decision ordinarily entails more complicated relief, the instruction
contemplates notice to the opponent so that both parties may either agree
on a draft or prepare counter proposals to be settled before the court
(id.; see, 22 NYCRR 202.48[c]; see also Siegel, New York Practice, [2d
ed], 250, at 376-377). The common element in both directives is
that further drafting and judicial approval of the judgment or order is
contemplated (see generally, Siegel, Practice Commentaries, McKinney's
Consol Laws of NY, Book 7B, CPLR 2220, at 166-171; Siegel, Practice Commentaries,
McKinney's Consol Laws of NY, Book 7B, CPLR 5016, at 642; see also Legislative
Studies and Reports, Subd.[c], McKinney's Consol Laws of NY, Book 7B, CPLR
5016, at 644).
However, where no drafting
by the parties is necessary because the matter involves an uncomplicated
disposition or simple judgment for a sum of money which speaks for itself,
or where "the court or clerk draws the order," no direction to submit or
settle will be utilized (Siegel, Practice Commentaries, McKinney's Consol
Laws of NY, Book 7B, CPLR 2220, at 170; see also Siegel, New York Practice
[2d ed], 250, at 376; CPLR 5016[b]). In such cases, the order or
judgment may then simply be "entered by the clerk without prior submission
to the court" pursuant to CPLR 5016 (Siegel, Practice Commentaries, McKinney's
Consol Laws of NY, Book 7B, CPLR 5016, at 642).
That section 202.48 is silent
with respect to decisions that do not contain a submit or settle directive
is not surprising, given that the rule serves primarily to address delays
in judicial dispositions occasioned by a party's failure to comply with
a court's directive to draw and submit a proposed order or judgment (see
Donovan v DiPietro, 195 AD2d 589, 590). Thus, the 60-day rule logically
applies only where further court involvement in the drafting process is
contemplated before entry.
Additionally, by its language, the 60-day time limitation 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 judgment (see, Helfant v Sobkowski,
174 AD2d 340, 341; see also Siegel, New York Practice, op cit, 1996 Pocket
Part, 250, at 49). Significantly, the Legislature has chosen not
to place a time restriction on the completion of entry (see, CPLR 5016).
In this case, the court
rendered a verdict for the plaintiff on his conversion action in the amount
of $5000 plus interest to run from a specified date. As is typical
in cases involving simple judgments for a sum of money, the court did not
direct that any party "settle" or "submit" a proposed judgment for signature,
and the 60-day rule was not triggered. Rather, the clerk was able
to enter judgment from the transcript of the court's decision (see, CPLR
5016[c]), which clearly set forth the amount of the judgment, and the action
was not deemed "abandoned" because entry was not completed within 60 days
of the court's decision.
Accordingly, the order of
the Appellate Division should be reversed, with costs, and the order of
Supreme Court, Monroe County, reinstated.
F O O T N O T E
1. As a practical matter, there is little incentive to enact
a specific time period within which a party must complete the entry process.
First, "[f]ailure by the prevailing party to expeditiously submit a judgment
for entry carries its own sanctions, including the inability to execute
on the judgment (CPLR 5230) and the indefinite extension of the losing
party's time in which to take an appeal (CPLR 5513[a])" (Helfant v Sobkowski,
174 AD2d 340, 341; see also, Siegel, New York Practice, [2d ed.] 250,
at 377-378; 637-638). Additionally, a losing party who feels aggrieved
by the prevailing party's failure to seek entry may have the judgment entered
and need not wait for the prevailing party to act (see, Siegel, Practice
Commentaries, McKinney's Consol Laws of NY, Book 7B, CPLR 5016, at 642).
Finally, because the entry function generally involves action by the clerk
with no further judicial oversight, there is little concern that delayed
entry will tie up judicial resources.
* * * * *
* * * * * *
* * * * * *
Order reversed, with costs, and order of Supreme Court, Monroe County,
reinstated. Opinion by Judge Titone. Chief Judge Kaye and Judges
Simons, Smith, Levine and Ciparick concur. Judge Bellacosa took no
part.
Decided December 19, 1996