It’s Settled – When to Settle an Order Pursuant to 22 NYCRR 202.48

By: Jonathan H. Freiberger

When a court issues a decision and order that is self-effectuating, nothing further from the parties is required. Sometimes, however, a court’s decision will direct that the prevailing party either: (a) submit an order or judgment for the court to consider; or, (b) submit or settle an order or judgment, on notice, for the court’s consideration.[1] This issue, which has been confusing lawyers for quite some time, is addressed in 22 N.Y.C.R.R. §202.48 – “Submission of orders, judgments and decrees for signature”, which provides, in relevant part:

(a) Proposed orders or judgments, with proof of service on all parties where the order is directed to be settled or submitted on notice, must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order be settled or submitted.

(b) Failure to submit the order or judgment timely shall be deemed an abandonment of the motion or action, unless for good cause shown.

The Court of Appeals, in Funk v. Barry, 89 N.Y.2d 364 (1996), explained the distinction between “submitting” an order or judgment and “submitting or settling an order or judgment on notice”:

By its plain terms, section 202.48 (a) speaks to the circumstances where the court's decision expressly directs a party to submit or settle an order or judgment. When a decision ends with the directive to "submit order," the court is generally directing the prevailing party to draw the order and present it to the judge who looks it over to make sure it reflects the decision properly, and then signs or initials it. This procedure typically calls for no notice to the opponent.

A directive to "settle," by contrast, is reserved for more complicated dispositions, such as orders involving restraints or contemplating a set of follow-up procedures. Because the decision ordinarily entails more complicated relief, the instruction contemplates notice to the opponent so that both parties may either agree on a draft or prepare counter proposals to be settled before the court. The common element in both directives is that further drafting and judicial approval of the judgment or order is contemplated.

Funk, 89 N.Y.2d at 367 (citations, internal quotation marks, ellipses, and brackets omitted).

The ramifications of the failure to timely settle an order when directed by the court to do so was made plain by the Second Department in Citibank, N.A. v. Velazquez, 284 A.D.2d 364 (2001). There, in a mortgage foreclosure action, lender moved to confirm a referee’s report of sale and for leave to enter a deficiency judgment, which motion was unopposed. Lender’s motion was granted with an instruction to “submit judgment on notice to the Clerk of the County of Westchester.” Id. at 364. Lender failed to timely submit the judgment and, accordingly, its subsequent motion for leave to enter a deficiency judgment against borrower was denied “on the ground that it had been abandoned.” Id. The motion court’s ruling was affirmed by the Second Department because, inter alia, lender “did not show good cause for the lengthy delay in filing the deficiency judgment.” Id.

The Court was more forgiving in Bank of New York Mellon Trust Co., N.A. v. Ahmed, 243 A.D.3d 851 (2d Dept. 2025), another mortgage foreclosure action. There, the lender failed to timely “settle” an order in accordance with 22 NYCRR 202.48 and stated that “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.” Ahmed, 243 A.D.3d at 853 (citation and internal quotation marks omitted). The Court found that vacatur was not warranted because the borrower “was not prejudiced” by the lender’s failure to timely settle the order and “the denial of vacatur pursuant to 22 NYCRR 202.48(b) brought repose to the proceedings and preserved judicial resources.” Id. (citations and internal quotation marks omitted).

Against this backdrop, we discuss Rosenberg v. Tool Time Construction Corp., a breach of contract action decided by the Appellate Division, Second Department, on May 20, 2026. After the defendant failed to appear in the action the plaintiff moved for a default judgment. In October of 2021, the motion court granted the unopposed motion and scheduled an inquest for damages. In January of 2022, after the inquest, the motion court awarded the plaintiff monetary damages against the defendant. A proposed judgment was not submitted by the plaintiff until November 2022.

The defendant appealed from the motion court’s denial of its motion pursuant to 22 NYCRR 202.48 to dismiss the complaint as abandoned. The Second Department affirmed. After quoting the substance of 22 NYCRR 202.48, and determining it was inapplicable, the Second Department stated:

However, 22 NYCRR 202.48 does not apply where the court merely directs a party to submit an order or judgment without expressly directing that the order or judgment be submitted on notice. Here, since the Supreme Court did not direct that a judgment based on its decision after the inquest be settled or submitted on notice, the plaintiffs were not required to comply with 22 NYCRR 202.48. Accordingly, the court should have denied that branch of the defendants' motion which was pursuant to 22 NYCRR 202.48 to dismiss the complaint as abandoned.

(Citations and internal quotation marks omitted.)

Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP.

This article is for informational purposes and is not intended to be and should not be taken as legal advice.

Unless otherwise stated, Freiberger Haber LLP’s articles are based on recently decided published opinions or litigation releases and not on matters handled by the firm.

[1] This BLOG has previously written on this issue [here] [here], and some of the background in today’s article are derived therefrom.