Andron v. City of New York

Appellate Division of the Supreme Court of New York

Andron v. City of New York

117 A.D.3d 526, 985 N.Y.S.2d 545

Appellate Division of the Supreme Court of the State of New York·Decided May 13, 2014·Published·Cited by 4 cases

Opinion

Order, Supreme Court, New York County (Geoffrey Wright, J.), entered June 19, 2013, which denied plaintiffs motion seeking to strike defendants’ answer for willful concealment of discovery and intentional violation of prior court orders directing disclosure, and granted defendants’ cross motion for summary judgment dismissing the complaint, unanimously modified, on the law, to deny defendants’ cross motion as untimely, and otherwise affirmed, without costs.

The court properly denied plaintiff’s motion to strike the City’s answer for late disclosure of evidence. Whether the additional documents disclosed are relevant can be fully explored at trial.

However, the motion court abused its discretion in granting leave for defendants to cross-move for summary judgment on the issue of lack of prior written notice, upon presentation of this late disclosure, on grounds unrelated to plaintiffs motion, and in the absence of good cause for the untimely motion (see Brill v City of New York, 2 NY3d 648 [2004]; Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124, 129 [2000]). Were we to consider the merits of the cross motion on this issue, we would find that issues of fact preclude summary judgment (see Sacco v City of New York, 92 AD3d 529 [1st Dept 2012]).

[527]*527Further, the motion court erred in considering the sufficiency of the notice of claim as a basis to dismiss plaintiff’s action. This ground was not litigated or raised by the parties, and plaintiff was prejudiced, since he was unable to respond to the ground considered sua sponte by the court (Greene v Davidson, 210 AD2d 108, 109 [1st Dept 1994], lv denied 85 NY2d 806 [1995]).

Concur — Tom, J.P., Acosta, Moskowitz, Gische and Clark, JJ.

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Order, Supreme Court, New York County (Geoffrey Wright, J.), entered June 19, 2013, which denied plaintiffs motion seeking to strike defendants’ answer for willful concealment of discovery and intentional violation of prior court orders directing disclosure, and granted defendants’ cross motion for summary judgment dismissing the complaint, unanimously modified, on the law, to deny defendants’ cross motion as untimely, and otherwise affirmed, without costs.

The court properly denied plaintiff’s motion to strike the City’s answer for late disclosure of evidence. Whether the additional documents disclosed are relevant can be fully explored at trial.

However, the motion court abused its discretion in granting leave for defendants to cross-move for summary judgment on the issue of lack of prior written notice, upon presentation of this late disclosure, on grounds unrelated to plaintiffs motion, and in the absence of good cause for the untimely motion (see Brill v City of New York, 2 NY3d 648 [2004]; Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124, 129 [2000]). Were we to consider the merits of the cross motion on this issue, we would find that issues of fact preclude summary judgment (see Sacco v City of New York, 92 AD3d 529 [1st Dept 2012]).

[527]*527Further, the motion court erred in considering the sufficiency of the notice of claim as a basis to dismiss plaintiff’s action. This ground was not litigated or raised by the parties, and plaintiff was prejudiced, since he was unable to respond to the ground considered sua sponte by the court (Greene v Davidson, 210 AD2d 108, 109 [1st Dept 1994], lv denied 85 NY2d 806 [1995]).

Concur — Tom, J.P., Acosta, Moskowitz, Gische and Clark, JJ.

Andron v. City of New York, 117 A.D.3d 526, 985 N.Y.S.2d 545 (N.Y. Ct. App. 2014).

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117 A.D.3d 526 (Andron v. City of New York) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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