Bivona v. Bob's Discount Furniture of NY, LLC

90 A.D.3d 796, 935 N.Y.2d 605

Opinion

The plaintiffs commenced this action, inter alia, to recover damages for negligence after purchasing a couch from the defendant that allegedly was infested with bedbugs. The defendant served and filed a motion for summary judgment dismissing the complaint on or about October 4, 2010, more than 120 days after the filing of the note of issue March 30, 2010. In an order dated April 22, 2011, the Supreme Court denied the defendant’s motion as untimely. We affirm.

“In the absence of a showing of good cause for the delay in filing a motion for summary judgment, ‘the court has no discretion to entertain even a meritorious, nonprejudicial motion for summary judgment’ ” (Greenpoint Props., Inc. v Carter, 82 AD3d 1157, 1158 [2011], quoting John P. Krupski & Bros., Inc. v Town Bd. of Town of Southold, 54 AD3d 899, 901 [2008]; see Brill v City of New York, 2 NY3d 648, 652 [2004]). Here, the defendant failed to establish “good cause” for the delay in serving and filing its motion (CPLR 3212 [a]). Accordingly, the Supreme Court properly denied, as untimely, the defendant’s motion for summary judgment dismissing the complaint (see Brill v City of New York, 2 NY3d at 652; Castillo v Valente, 85 AD3d 1080 [2011]; Riccardi v CVS Pharmacy, Inc., 60 AD3d 838 [2009]). Angiolillo, J.E, Dickerson, Lott and Miller, JJ., concur.