Most lawyers are well aware that when a motion in decided in their clients favor they have an obligation to serve that order on opposing counsel with notice of entry. “Where the rights of a party are or may be affected by an order, the successful moving party, in order to give validity to the order, is required to serve it on the adverse party” ( McCormick v Mars Assoc., 25 A.D.2d 433). Moreover, “[T]he party prevailing on the motion shall file the order and the papers used on the motion with the proper clerk after receiving them. If a party fails to file any papers required to be filed under this subdivision, the order may be vacated as irregular, with costs.” CPLR § 2220(a). So what are the ramifications of failing to serve your adversary with the Court’s decision? In some instances the consequences may be dire.
If a decision gives a direct order to serve with notice of entry within a specific time frame, failure to do so shall make the decision irregular and void. Moreover, if a decision has language such as to serve all parties “without undue delay” it could be considered a violation of CPLR § 2220(a) if the winning party waits to long to serve the decision with notice of entry on their adversaries. The civil procedure rules clearly state that a violation of CPLR § 2220(a) may result in deeming the order irregular and vacating the same.
We recently had a case where an adversary waited a year to serve a decision granting him summary judgment with notice of entry and failed to provide any good cause reason for their year long delay. Moreover, they were directed by the Court to serve “without undue delay”. Under no circumstances could the defendant-respondent’s year long delay in serving the order with notice of entry be considered “without undue delay”. In most circumstances the service of an order should be accomplished within thirty (30) days of its filing. Defendant waited twelve (12) months which clearly shows undue delay. This issue is currently pending before the second department and we will soon see what the ultimate decision will be.
Now there are other oral decisions which a judge may render for the bench and then require the winning party to order the Court minutes so that they may be signed and filed. Failure to submit the transcribed decision to the Court for signature within thirty days will make the decision null and void as per the New York Code Rules & Regulations.