Bissell v. New York State Department of Transportation

Appellate Division of the Supreme Court of New York

Bissell v. New York State Department of Transportation

122 A.D.3d 1434, 995 N.Y.S.2d 530

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 21, 2014

DocketClaim No. 116958

StatusPublished

This text of 122 A.D.3d 1434 (Bissell v. New York State Department of Transportation) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Bissell v. New York State Department of Transportation, 122 A.D.3d 1434, 995 N.Y.S.2d 530 (N.Y. Ct. App. 2014).

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Opinion

Appeal from an order of the Court of Claims (Renee Forgensi Minarik, J.), entered October 17, 2013. The order granted the motion of defendant for summary judgment and dismissed the claim.

It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs, the motion is denied and the claim is reinstated.

Memorandum: Claimants commenced this action alleging that they sustained damage to their real and personal property as the result of defendant’s reconstruction of the road adjacent to their property. The Court of Claims erred in entertaining defendant’s untimely motion for summary judgment dismissing the claim and in granting the motion. Defendant made its motion more than 10 months after the expiration of the statutory deadline of 120 days and failed to show good cause for its delay [1435]*1435in its moving papers (see CPLR 3212 [a]; McNeill v Menter, 19 AD3d 1161, 1161 [2005]). The court improperly considered the “good cause” proffered by defendant for the first time in its reply papers (see Goldin v New York & Presbyt. Hosp., 112 AD3d 578, 579 [2013]) and, in any event, defendant’s explanation for its untimeliness did not constitute good cause (see Brill v City of New York, 2 NY3d 648, 652 [2004]; McNeill, 19 AD3d at 1162).

Present — Scudder, P.J., Peradotto, Lindley, Sconiers and Valentino, JJ.

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Appeal from an order of the Court of Claims (Renee Forgensi Minarik, J.), entered October 17, 2013. The order granted the motion of defendant for summary judgment and dismissed the claim.

It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs, the motion is denied and the claim is reinstated.

Memorandum: Claimants commenced this action alleging that they sustained damage to their real and personal property as the result of defendant’s reconstruction of the road adjacent to their property. The Court of Claims erred in entertaining defendant’s untimely motion for summary judgment dismissing the claim and in granting the motion. Defendant made its motion more than 10 months after the expiration of the statutory deadline of 120 days and failed to show good cause for its delay [1435]*1435in its moving papers (see CPLR 3212 [a]; McNeill v Menter, 19 AD3d 1161, 1161 [2005]). The court improperly considered the “good cause” proffered by defendant for the first time in its reply papers (see Goldin v New York & Presbyt. Hosp., 112 AD3d 578, 579 [2013]) and, in any event, defendant’s explanation for its untimeliness did not constitute good cause (see Brill v City of New York, 2 NY3d 648, 652 [2004]; McNeill, 19 AD3d at 1162).

Present — Scudder, P.J., Peradotto, Lindley, Sconiers and Valentino, JJ.

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122 A.D.3d 1434, 995 N.Y.S.2d 530, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bissell-v-new-york-state-department-of-transportation-nyappdiv-2014.

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