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To Settle an Order or Not to Settle an Order, That is the Question

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  • Posted on: Jul 14 2023

By Jonathan H. Freiberger

On July 12, 2023, the Appellate Division, Second Department, in U.S. Bank Trust, N.A. v. Rahman, addressed an issue that has been confusing lawyers for quite some time involving 22 N.Y.C.R.R. §202.48 – “Submission of orders, judgments and decrees for signature”, which provides, in relevant 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.

Many times, a court will issue a decision and order that requires nothing further from the parties.  Frequently, however, a decision will direct that the prevailing party either: (a) submit an order or judgment for the court to consider; or, (b) submit or settle an order or judgment, on notice, for the court’s consideration.  The choice that the court makes could have serious ramifications to the parties.  As set forth in 22 N.Y.C.R.R § 202.48, if the prevailing party on a motion is directed to “submit or settle an order or judgment on notice”, the failure to do so within sixty days could operate as an abandonment of movant’s short-lived victory.

The Court of Appeals, in Funk v. Barry, 89 N.Y.2d 364 (1996), explained the distinction between “submitting” an order or judgment and “submitting or settling an order or judgment on notice”:

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.  This procedure typically calls for no notice to the opponent.

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. 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. The common element in both directives is that further drafting and judicial approval of the judgment or order is contemplated.

Funk, 89 N.Y.2d at 367 (citations, internal quotation marks, ellipses and brackets omitted).

The ramifications of the failure to timely settle an order when directed by the court to do so was made plain by the Second Department in Citibank, N.A. v. Velazquez, 284 A.D.2d 364 (2001).  There, in a mortgage foreclosure action, lender moved to confirm a referee’s report of sale and for leave to enter a deficiency judgment, which motion was unopposed.  Lender’s motion was granted with an instruction to “submit judgment on notice to the Clerk of the County of Westchester.”  Lender failed to timely submit the judgment and, accordingly, its subsequent motion for leave to enter a deficiency judgment against borrower was denied “on the ground that it had been abandoned.”  The motion court’s ruling was affirmed by the Second Department because, inter alia, lender “did not show good cause for the lengthy delay in filing the deficiency judgment.”

Rahman was also a mortgage foreclosure action in which borrower defaulted in appearing.  [Eds. Note: the facts as set forth herein are simplified for editorial purposes.]  On October 15, 2015, the motion court granted lender’s motion for a default judgment and for an order of reference in a decision that directed lender to “submit order” (the “October 2015 Decision”).  Six months later, a proposed order was submitted by lender and an order was signed by the court three months thereafter.

Subsequently, on August 13, 2018 (the “August 2018 Decision”), the court rendered another decision granting lender’s motion to confirm the referee’s report and for a judgment of foreclosure and sale.  The August 2018 Decision directed lender to “settle a judgment on notice … on or before September 11, 2018.”  Lender waited until October 29, 2018, to present a notice of settlement and proposed judgment to the court.  Nonetheless, the judgment of foreclosure and sale was entered on November 21, 2018.

In May of 2019, pursuant to, inter alia, 22 N.Y.C.R.R § 202.48, borrower moved to vacate the October 15 Decision and the related order as well as the August 13 Decision and the related judgment of foreclosure and sale.  Lender appealed the denial of its motion and the Second Department affirmed.

As to the October 15 Decision and related order the Court stated:

22 NYCRR 202.48 does not apply where the court merely directs a party to submit an order or judgment without expressly directing that the order or judgment be submitted on notice.  Here, since the [October 2015 Decision] did not require that the proposed order of reference be settled or submitted on notice, the [lender] was not required to comply with 22 NYCRR 202.48.  [Citations and internal quotation marks omitted.]

As to the judgment of foreclosure and sale, the Court stated:

Regarding the judgment of foreclosure and sale, it is within the sound discretion of the court to accept a belated order or judgment for settlement.  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.  Here, the Supreme Court providently exercised its discretion in accepting the judgment of foreclosure and sale, which was submitted to the court on notice 48 days after the deadline set forth in the court’s [August 2018 Decision].


While the court may be forgiving (as it was in Rahman), such is not always the case.  Practitioners should be mindful of the relevant rules and time periods and strive to comply with same.

Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP.

This article is for informational purposes and is not intended to be and should not be taken as legal advice. 

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