Andrew Rosenberg, et al. v Tool Time Construction Corp., et al.
Categories
Attorneys and Parties
Brief Summary
Construction contract dispute involving alleged failure to perform contractual duties and alleged unsatisfactory performance.
The Supreme Court, Nassau County, granted the defendants' motion to dismiss the complaint as abandoned under 22 NYCRR 202.48 [requires proposed orders or judgments to be submitted within 60 days after a decision directing that they be settled or submitted, and treats untimely submission as abandonment unless good cause is shown].
The Appellate Division reversed the portion of the order that dismissed the complaint as abandoned.
The rule did not apply because the Supreme Court's post-inquest decision did not expressly direct that the judgment be settled or submitted on notice, so the plaintiffs were not obligated to comply with the 60-day submission requirement.
Background
The plaintiffs brought a breach of contract action against the defendants, alleging that the defendants failed to perform some contractual obligations and performed others in an unsatisfactory manner. The defendants did not appear or answer the complaint. On October 28, 2021, the Supreme Court granted the plaintiffs' unopposed motion for leave to enter a default judgment and scheduled an inquest on damages. After the inquest, on January 26, 2022, the court awarded the plaintiffs $188,560 in damages against both defendants. The plaintiffs did not submit a proposed judgment until November 2022. The defendants then moved, among other things, to dismiss the complaint as abandoned.
Lower Court Decision
In an order dated April 29, 2024, the Supreme Court, Nassau County, granted the branch of the defendants' motion seeking dismissal of the complaint as abandoned based on the plaintiffs' delay in submitting the proposed judgment after the inquest decision.
Appellate Division Reversal
The Appellate Division reversed insofar as appealed from, with costs, and denied the branch of the defendants' motion seeking dismissal as abandoned. The appellate court held that 22 NYCRR 202.48 applies only when the court directs that an order or judgment be settled or submitted on notice. Because the Supreme Court did not expressly impose that requirement after the inquest, the plaintiffs' delayed submission of the judgment did not constitute abandonment.
Legal Significance
This decision reinforces that 22 NYCRR 202.48 is not triggered merely because a court directs a party to submit a proposed order or judgment. The rule applies only when the court expressly directs settlement or submission on notice. Absent that express direction, a delayed submission does not justify dismissal for abandonment.
A party's failure to submit a proposed judgment within 60 days will not support dismissal as abandoned unless the court expressly directed that the judgment be settled or submitted on notice under 22 NYCRR 202.48.