Diaz v. Altman

Appellate Division of the Supreme Court of New York

Diaz v. Altman

298 A.D.2d 126, 747 N.Y.S.2d 384, 2002 N.Y. App. Div. LEXIS 9213

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

DecidedOctober 1, 2002

StatusPublished

This text of 298 A.D.2d 126 (Diaz v. Altman) 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

Diaz v. Altman, 298 A.D.2d 126, 747 N.Y.S.2d 384, 2002 N.Y. App. Div. LEXIS 9213 (N.Y. Ct. App. 2002).

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Opinion

—Order, Supreme Court, Bronx County (Gerald Esposito, J.), entered January 29, 2002, which granted defendant’s motion to reargue and/or renew a prior order, entered on or about October 19, 2001, denying defendants’ motion for an extension of time to move for summary judgment dismissing the complaint, and, insofar as. appealed from, adhered to the prior order, unanimously affirmed, without costs. Appeal from the prior order unanimously dismissed, without costs, as superseded by the appeal from the latter order.

Since liability was the sole basis of the proposed summary judgment motion, and since the only disclosure defendants claim was still outstanding at the time the note of issue was filed concerned damages, it does not avail defendants to argue that the reason they did not move for summary judgment within 120 days of the filing of the note of issue was because disclosure was not complete (CPLR 3212 [a]; see Martorello v Consolidated Edison Co., 260 AD2d 317). We note defendants’ withdrawal of prior motions to strike the note of issue, and the absence of a written order, or even a transcript, substantiating their claim that on each occasion they moved to strike the note of issue, they were advised by the motion court that they could move for summary judgment even though it was not inclined to strike the note of issue. We have considered and rejected defendants’ other arguments. Concur — Nardelli, J.P., Buckley, Ellerin, Rubin and Friedman, JJ.

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—Order, Supreme Court, Bronx County (Gerald Esposito, J.), entered January 29, 2002, which granted defendant’s motion to reargue and/or renew a prior order, entered on or about October 19, 2001, denying defendants’ motion for an extension of time to move for summary judgment dismissing the complaint, and, insofar as. appealed from, adhered to the prior order, unanimously affirmed, without costs. Appeal from the prior order unanimously dismissed, without costs, as superseded by the appeal from the latter order.

Since liability was the sole basis of the proposed summary judgment motion, and since the only disclosure defendants claim was still outstanding at the time the note of issue was filed concerned damages, it does not avail defendants to argue that the reason they did not move for summary judgment within 120 days of the filing of the note of issue was because disclosure was not complete (CPLR 3212 [a]; see Martorello v Consolidated Edison Co., 260 AD2d 317). We note defendants’ withdrawal of prior motions to strike the note of issue, and the absence of a written order, or even a transcript, substantiating their claim that on each occasion they moved to strike the note of issue, they were advised by the motion court that they could move for summary judgment even though it was not inclined to strike the note of issue. We have considered and rejected defendants’ other arguments. Concur — Nardelli, J.P., Buckley, Ellerin, Rubin and Friedman, JJ.

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Bluebook (online)

298 A.D.2d 126, 747 N.Y.S.2d 384, 2002 N.Y. App. Div. LEXIS 9213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/diaz-v-altman-nyappdiv-2002.

Opinion

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