Cabibel v. XYZ Associates, L.P.

36 A.D.3d 498, 828 N.Y.S.2d 341

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 18, 2007
• Status: Published

Opinion

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered May 11, 2006, which granted defendants and third-party plaintiffs’ motion for summary judgment dismissing the complaint and which dismissed the claims against third-party defendant L & L Wings, unanimously reversed, on the law, without costs, the motion denied and the complaint and third-party complaint reinstated.

It is undisputed that defendants moved for summary judgment approximately 60 days after the date set by the court without seeking leave of the court or offering an explanation showing good cause for the delay. Defendants failed to seek an extension of time to file their motion or to proffer an excuse for their delay, doing so only in reply to plaintiff’s opposition. Defendants also failed to move to vacate the note of issue. The motion should thus have been denied as untimely (CPLR 3212 [a]), and the court should have declined to reach the merits (Brill v City of New York, 2 NY3d 648 [2004]; see also Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]). Concur— Tom, J.E, Marlow, Williams, Gonzalez and Catterson, JJ.