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COURT HAD DISCRETION TO ACCEPT A BELATED ORDER OF REFERENCE SUBMITTED AFTER THE 60-DAY DEADLINE IN 22 NYCRR 202.48 IN THIS FORECLOSURE ACTION, LAW OF THE CASE DOCTRINE DOES NOT APPLY TO A DISCRETIONARY ORDER (SECOND DEPT).

The Second Department determined Supreme Court properly exercised its discretion to accept a belated order of reference in this foreclosure action. The court noted that the law of the case doctrine does not apply to a discretionary ruling:

In this action to foreclose a mortgage, the Supreme Court denied the plaintiffs’ motion for summary judgment on the complaint. On appeal, this Court reversed that determination … . Thereafter, the plaintiffs moved, inter alia, for an order of reference. The Supreme Court, among other things, granted that branch of the motion and directed the plaintiffs to submit an order of reference along with certain supporting documents. The plaintiffs failed to submit the order of reference and supporting documents to the court, allegedly because the documents were lost in the mail.

The plaintiffs made a second motion for an order of reference. The Supreme Court denied this motion without prejudice, finding that the plaintiffs abandoned their motion for an order of reference since they failed to submit the order of reference within 60 days after the signing and filing of the order directing submission, without showing good cause for their failure, in violation of 22 NYCRR 202.48(a). The plaintiffs then moved, inter alia, in effect, to extend the time to submit an order of reference, and for an order of reference. In the order appealed from, the court granted those branches of the plaintiffs’ motion, excusing the plaintiffs’ failure to submit some of the supporting documents the court had directed them to provide in its earlier order.

” 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'” … . Solomon v Burden, 2018 NY Slip Op 07480, Second Dept 11-7-18

CIVIL PROCEDURE (BELATED ORDER OR JUDGMENT FOR SETTLEMENT, COURT HAS DISCRETION TO ACCEPT A BELATED ORDER OF REFERENCE SUBMITTED AFTER THE 60-DAY DEADLINE IN 22 NYCRR 202.48 IN THIS FORECLOSURE ACTION, LAW OF THE CASE DOCTRINE DOES NOT APPLY TO A DISCRETIONARY ORDER (SECOND DEPT))/FORECLOSURE (BELATED ORDER OR JUDGMENT FOR SETTLEMENT, COURT HAS DISCRETION TO ACCEPT A BELATED ORDER OF REFERENCE SUBMITTED AFTER THE 60-DAY DEADLINE IN 22 NYCRR 202.48 IN THIS FORECLOSURE ACTION, LAW OF THE CASE DOCTRINE DOES NOT APPLY TO A DISCRETIONARY ORDER (SECOND DEPT))/22 NYCRR 202.48 (BELATED ORDER OR JUDGMENT FOR SETTLEMENT, COURT HAS DISCRETION TO ACCEPT A BELATED ORDER OF REFERENCE SUBMITTED AFTER THE 60-DAY DEADLINE IN 22 NYCRR 202.48 IN THIS FORECLOSURE ACTION, LAW OF THE CASE DOCTRINE DOES NOT APPLY TO A DISCRETIONARY ORDER (SECOND DEPT))/LAW OF THE CASE DOCTRINE (BELATED ORDER OR JUDGMENT FOR SETTLEMENT, COURT HAS DISCRETION TO ACCEPT A BELATED ORDER OF REFERENCE SUBMITTED AFTER THE 60-DAY DEADLINE IN 22 NYCRR 202.48 IN THIS FORECLOSURE ACTION, LAW OF THE CASE DOCTRINE DOES NOT APPLY TO A DISCRETIONARY ORDER (SECOND DEPT))

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