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DEFENDANTS’ FAILURE TO SERVE A CONFERENCE SCHEDULING ORDER ON PLAINTIFFS, WHICH APPARENTLY RESULTED IN THE PLAINTIFFS NOT ATTENDING THE CONFERENCE, DID NOT JUSTIFY THE DISMISSAL OF DEFENDANTS’ FULLY SUBMITTED SUMMARY JUDGMENT MOTION WHICH MUST BE DECIDED ON THE MERITS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have dismissed defendants’ summary judgment motion in this car accident case because defendants apparently did not serve an order scheduling a conference on the plaintiffs. Apparently the defendants appeared at the conference but the plaintiffs did not:

22 NYCRR 202.27 governs what a court may do in the event that the plaintiff, the defendant, or both parties fail to appear at a scheduled calendar call or conference. Specifically, where the plaintiff appears but the defendant does not, the court may grant judgment by default or order an inquest … . Where the defendant appears but the plaintiff does not, the court may dismiss the action and order a severance of counterclaims or cross claims … . If no party appears, the court may make such order as appears just … .

Here, since the defendants apparently appeared at the conference … , but the plaintiffs did not appear, the sanction available to the Supreme Court was the dismissal of the action and the severance of any counterclaims or cross claims. Clearly, the denial of the defendants’ summary judgment motion as a sanction for not serving the plaintiffs with a copy of the order … , was not a penalty authorized under the plain language of 22 NYCRR 202.27(b). Under the circumstances of this case, where the defendants’ motion was fully submitted and ready to be decided several months prior to the court’s issuance of the … order scheduling a conference, the court should not have denied the motion pursuant to 22 NYCRR 202.27 and should have decided the motion on its merits …  Indeed, even if neither party had appeared for the scheduled settlement conference, in which case the court, pursuant to 22 NYCRR 202.27(c), was authorized to make “such order as appears just,” under the circumstances present here, it would have been an improvident exercise of discretion to sanction the defendants by denying their fully submitted summary judgment motion without regard to an evaluation of its merit … . Charalabidis v Elnagar, 2020 NY Slip Op 04912, Second Dept 9-16-20

 

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