Corbett v. Zedayko ( 1988 )

OPINION OF THE COURT

Loren N. Brown, J.

By notice of motion and supporting papers, the defendant moves for an order permitting renewal of his prior motion for summary judgment denied by a decision of this court, dated October 14, 1987. No order was submitted on that motion prior to that submitted with the plaintiff’s opposition to this motion.

In support of this motion, the defendant has, except for one new issue, relied upon the same arguments and facts presented and rejected on the prior motion. The court once again rejects those contentions.

The additional ground for relief is based upon section 202.48 of the Uniform Rules for Trial Courts (22 NYCRR), which requires the submission of a proposed order or judgment "within 60 days after the signing and filing of the decision directing that the order be settled or submitted.” Failure to make a timely submission "shall be deemed an abandonment of the motion or action, unless for good cause shown.” (22 NYCRR 202.48 [b].) Because the order denying summary judgment to the defendant was not submitted by the plaintiff as prevailing party within the period allowed, the defendant contends that the action must be deemed abandoned. The court does not agree.

The language of section 202.48, though not without ambiguity, provides for abandonment of the action or motion depending upon the procedure then before the court. Had the court’s decision required a judgment, and it was not forthcoming, the action would be deemed abandoned. Failure to submit a judgment demonstrates that the prevailing party no longer desires the relief originally sought. When, as in the case at bar, the court’s decision requires an interim order, the motion which gave rise to the decision and order may be deemed abandoned.^* Failure to submit such an order, perhaps addressing a minor issue, cannot justify dismissal of the entire action based upon abandonment.

Accordingly, the motion is, in all respects, denied.

* The rule as it meshes with actual practice creates a procedural pitfall for the movant. The prevailing party on a motion, which customarily submits a proposed order, may not feel any sense of urgency in submitting an order on a motion brought by the opposing party. The abandonment of the motion holds no sting for the nonmoving prevailing party.