Avezbakiyev v. City of New York

104 A.D.3d 888, 960 N.Y.S.2d 910

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 27, 2013
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendants Horizon at Forest Hills, LLC, and Britt Realty Development Corp., appeal from an order of the Supreme Court, Queens County (Kerrigan, J.), dated October 17, 2011, which denied, as untimely, their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

Ordered that the order is affirmed, with one bill of costs.

The Supreme Court properly denied, as untimely, the motion of the defendants Horizon at Forest Hills, LLC, and Britt Realty Development Corp. (hereinafter together the appellants) for summary judgment dismissing the complaint and all cross claims insofar as asserted against them, since they failed to demonstrate good cause for the delay in making their motion for summary judgment (see CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648 [2004]). Significant outstanding discovery may, in certain circumstances, constitute good cause for a delay in making a motion for summary judgment (see Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124 [2000]; Rung v Zheng, 73 AD3d 862 [2010]; McArdle v 123 Jackpot, Inc., 51 AD3d 743 [2008]; Sclafani v Washington Mut., 36 AD3d 682 [2007]). Here, however, the discovery outstanding at the time the note of issue was filed was not essential to the appellants’ motion (see Greenpoint Props., Inc. v Carter, 82 AD3d 1157 [2011]; Anderson v Kantares, 51 AD3d 954 [2008]; Tower Ins. Co. of N.Y. v Razy Assoc., 37 AD3d 702 [2007]; Espejo v Hiro Real Estate Co., 19 AD3d 360 [2005]).

In light of the foregoing, we need not reach the parties’ remaining contentions. Mastro, J.E, Austin, Cohen and Miller, JJ., concur.