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  • Posted on: Dec 4 2020

According to Wikipedia, New York Senator William L. Marcy coined the phrase “to the victor belong the spoils” when “referring to the victory of Andrew Jackson in the election of 1828.”  In certain situations, however, the failure of a litigant to act quickly when the Court issues a favorable decision on a motion could spoil the “spoils.”

Sometimes the Court renders a decision on a motion instead of issuing an order or judgment.  In such cases it is often up to the prevailing litigant to take an additional step to effectuate the decision.  In cases where Rule 202.48 of the Uniform Civil Rules for the Supreme Court and the County Court is applicable the prevailing party must move quickly or run the risk of losing the benefit of a coveted victory.  Rule 202.48 provides, in pertinent part:

Section 202.48 Submission of orders, judgments and decrees for signature.

(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.

The Court of Appeals, in Funk v. Barry, 89 N.Y.2d 364 (1996), had occasion to resolve a “conflict among the Appellate Division Departments.” In Funk, the Court decided the question of “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” by concluding that “the 60-day period applies only where the court explicitly directs that the proposed judgment or order be settled or submitted for signature.”  Funk, 89 N.Y.2d at 365.  

After a bench trial, the supreme court in Funk found in favor of plaintiff in the amount of $5,000 on a conversion claim, but “did not direct any party to settle or submit the judgment for signature.”  Funk, 89 N.Y.2d at 365.  Eleven months after the verdict, counsel submitted a proposed judgment for entry and defense counsel objected.  Plaintiff moved for an order permitting the entry of the judgment and defendant cross-moved for an order dismissing the action as abandoned pursuant to 22 NYCRR 202.48.  Supreme court granted plaintiff’s motion and denied defendant’s cross-motion.  The Appellate Division, Fourth Department, reversed and dismissed the action holding that the 60-day time limit applies “even where no direction to submit or settle an order or judgment is contained in the court’s decision.”  Funk, 89 N.Y.2d at 366.  In rendering its decision, the Funk Court of Appeals noted that a direction to “submit” an order is typically addressed to relatively simple cases where the court intends to look a draft order “over to make sure it reflects the decision properly, and then signs or initials it”, which procedure is typically done without notice to the opponent.  Funk, 89 N.Y.2d at 367 (citation and internal quotation marks omitted).  The Court noted that:

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.

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. 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.

Funk, 89 N.Y.2d at 367 (citation and some internal quotation marks omitted).  Ultimately, the Court found that “the 60–day rule logically applies only where further court involvement in the drafting process is contemplated before entry.”  Funk, 89 N.Y.2d at 368.

The failure to timely “settle” an order pursuant to 22 NYCRR 202.48 can be excused upon the showing of “good cause”.  22 NYCRR 202.48(b).  See also Parisi v. McElhatton, 209 A.D.2d 495 (2nd Dep’t 1994).

On December 2, 2020, the Appellate Division, Second Department, addressed these issues in James B. Nutter & Co. v. McLaughlin.  The plaintiff in James B. Nutter commenced an action to foreclose a mortgage and its unopposed motion for a judgment of foreclosure and sale was granted in a December 12, 2016 order that directed plaintiff to “submit” a judgment.  While the James B. Nutter plaintiff submitted its proposed judgment, the court issued an order that “sua sponte, deemed the action abandoned, finding that the plaintiff failed to establish good cause for its failure to submit the judgment within 60 days of the order entered December 12, 2016.”  

In reversing the James B. Nutter supreme court, the Second Department stated:

Pursuant to 22 NYCRR 202.48, an order or judgment which is directed to be settled or submitted on notice must be submitted for signature within 60 days after the signing and filing of the decision directing that the order or judgment be settled or submitted. A party who fails to submit the order or judgment within the 60-day time period will be deemed to have abandoned the action or motion, absent good cause shown. In this case, when the Supreme Court initially granted the plaintiff’s motion, inter alia, for a judgment of foreclosure and sale, it did not direct that the proposed judgment had to be settled or submitted on notice. 22 NYCRR 202.48 does not apply where, as here, the court merely directs a party to submit an order or judgment without expressly directing that the order or judgment be submitted on notice. Accordingly, the Supreme Court should not have denied the plaintiff’s motion for a judgment of foreclosure and sale for failure to comply with 22 NYCRR 202.48, and should not have deemed the action abandoned.

(Citations omitted.)

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