Commercial Division Blog

Posted: July 12, 2023 / Written by: Jeffrey M. Eilender, Samuel L. Butt, Seth D. Allen, Joshua Wurtzel, Channing J. Turner / Category Commercial

Court Extended Time to Oppose Motion Marked “Fully Submitted – No Opposition” and Rejected Cross-Motion for Fees and Costs

In an Opinion, dated June 5, 2023, in Amsterdam Capital Solutions, LLC v. WeWork Companies Inc., 2023 NY Slip Op 50543(U), Justice Robert R. Reed of the New York County Commercial Division granted plaintiff’s motion seeking an extension of time to file a partial opposition to defendant’s motion to dismiss and denied defendant’s cross-motion for costs and attorneys’ fees. The Court explained:

CPLR § 2004 provides that "the court may extend the time fixed by any statute, rule or order from doing any act, upon such terms as may be just and upon good cause shown." In considering a motion seeking to extend a respondent's time to file opposition to a motion, the court "may properly consider factors such as the length of the delay, whether the opposing party has been prejudiced by the delay, the reason given for the delay [and] whether the moving party was in default before seeking the extension" (Grant v City of New York, 17AD3d 215, 217 [1st Dept 2005] quoting Tewari v Tsoutsouras, 75 NY2d 1, 12, 549 N.E.2d 1143, 550 N.Y.S.2d 572 [1989]).

Here, plaintiff seeks an extension of time to file partial opposition to defendant's motion dated July 28, 2022. Plaintiff appears to argue a law office failure resulted in the delay of his filing of his opposition (NYSCEF doc. no. 33, ¶ 14).

The court notes that plaintiff previously filed an order to show cause whereupon it sought an order "pursuant to CPLR § 7503 (a) compelling arbitration of Plaintiff's claims and dismissing the action" (NYSCEF doc. no. 17- 21). Presumably plaintiff would not be moving for an order to dismiss his own claim, but given that plaintiff also requested an extension of time to respond to defendant's motion, the court is inclined to accept that a law office failure, on multiple fronts, occurred here. Notwithstanding, plaintiff ultimately did file his opposition to the defendant's motion on September 9, 2022, concurrently with his instant application (NYSCEF doc. no. 30).

In opposition, defendant has not established what, if any, prejudice will ensue to defendant should the court grant plaintiff's requested relief. In consideration of the strong public policy in favor of resolving cases on the merits, the lack of demonstrable prejudice to defendant, and given the fact that plaintiff's delay was not lengthy, this court grants plaintiff's application to extend the time to file his partial opposition to plaintiff's motion (Contave v 170 W. 85th St. Hous. Dev. Fund Corp., 164 AD3d 1157, 1157 [1st Dept 2018].

With respect to defendant's cross-motion, pursuant to 22 NYCRR § 130-1.1, the court may award reasonable attorney's fees or costs in the form of reimbursement for actual expenses reasonably incurred or impose financial sanctions on any party or attorney who engages in frivolous conduct. Conduct for the purposes of this rule is frivolous if:

(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;

(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or

(3) it asserts material factual statements that are false

(22 NYCRR § 130-1.1 [c] [1], [2], [3]).

To determine whether conduct is frivolous, the court considers "among other issues, the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal factual basis was apparent or should have been apparent, or was brought to the attention of counsel or the party" (22 NYCRR §130-1.1 [c]).

In this court's view, plaintiff's conduct is not frivolous as defined by 22 NYCRR § 130-1.1. The court, in its discretion, denies defendant's request for costs.

As this case shows, while it is important to meet filing deadlines, short delays may be excused under certain limited circumstances. Contact the Commercial Division Blog Committee at if you or a client have questions concerning extensions of time to file defense motions