Chmielowiec v. Blackwood

Appellate Division of the Supreme Court of New York

Chmielowiec v. Blackwood

2016 NY Slip Op 7137, 144 A.D.3d 425, 40 N.Y.S.3d 107

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

DecidedNovember 1, 2016

Docket2105 302267/08

StatusPublished

This text of 2016 NY Slip Op 7137 (Chmielowiec v. Blackwood) 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.

Bluebook

Chmielowiec v. Blackwood, 2016 NY Slip Op 7137, 144 A.D.3d 425, 40 N.Y.S.3d 107 (N.Y. Ct. App. 2016).

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Opinion

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered October 9, 2015, which denied defendants-appellants’ motion for summary judgment dismissing the complaint as against them on the ground that it was untimely, unanimously affirmed, without costs.

Appellants’ assertion that they were unaware that the case had been assigned to Justice Guzman’s part before they moved for summary judgment is unsupported by the record and therefore cannot be considered (see Chimarlos v Duhl, 152 AD2d 508 [1st Dept 1989]). The assertion is also belied by their notice of motion, which is in the record, and which identifies the IAS Part and judge to which the motion should be referred. Since appellants provided no explanation for filing their motion for summary judgment outside the time period set by the rules of the assigned IAS judge, the motion court did not improvidently exercise its discretion in denying the motion as untimely (see Fine v One Bryant Park, LLC, 84 AD3d 436 [1st Dept 2011]; see also CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648, 652 [2004]).

Concur—Mazzarelli, J.P., Saxe, Moskowitz, Kahn and Gesmer, JJ.

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Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered October 9, 2015, which denied defendants-appellants’ motion for summary judgment dismissing the complaint as against them on the ground that it was untimely, unanimously affirmed, without costs.

Appellants’ assertion that they were unaware that the case had been assigned to Justice Guzman’s part before they moved for summary judgment is unsupported by the record and therefore cannot be considered (see Chimarlos v Duhl, 152 AD2d 508 [1st Dept 1989]). The assertion is also belied by their notice of motion, which is in the record, and which identifies the IAS Part and judge to which the motion should be referred. Since appellants provided no explanation for filing their motion for summary judgment outside the time period set by the rules of the assigned IAS judge, the motion court did not improvidently exercise its discretion in denying the motion as untimely (see Fine v One Bryant Park, LLC, 84 AD3d 436 [1st Dept 2011]; see also CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648, 652 [2004]).

Concur—Mazzarelli, J.P., Saxe, Moskowitz, Kahn and Gesmer, JJ.

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Bluebook (online)

2016 NY Slip Op 7137, 144 A.D.3d 425, 40 N.Y.S.3d 107, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chmielowiec-v-blackwood-nyappdiv-2016.

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