Dorfman v. Zelik

240 A.D.2d 619, 659 N.Y.S.2d 1001, 1997 N.Y. App. Div. LEXIS 6819

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 23, 1997
• Status: Published

Opinion

In an action, inter alia, to foreclose a mortgage, the defendant Joseph Zelik appeals (1), as limited by his brief, from so much of an order of the Supreme Court, Kings County (Golden, J.), dated June 10, 1996, as granted the plaintiffs’ motion for summary judgment and denied his cross motion to dismiss the complaint insofar as asserted against him for failing to comply with CPLR 306-a, and (2) from an order of the same court, dated June 21, 1996, which, inter alia, denied his motion pursuant to CPLR 2004 to extend his time to serve and file papers in opposition to the plaintiffs’ motion for summary judgment and for reconsideration of the motion based thereon.

Ordered that the order dated June 21, 1996, is modified by-deleting therefrom the words "is in all respects denied”, and substituting therefor the words "is granted to the extent of extending the time of the defendant Zelik to serve and file papers in opposition to the plaintiffs’ motion for summary judgment, those opposition papers are deemed timely served and filed, the motion is reconsidered based thereon, the original determination is adhered to, and the motion is otherwise denied”; as so modified, the order dated June 21, 1996, is affirmed; and it is further,

Ordered that the order dated June 10, 1996, is affirmed insofar as appealed from; and it is further,

Ordered that the respondents are awarded one bill of costs.

Under the circumstances of this case, the court should have reconsidered its decision on the plaintiffs’ motion for summary judgment after extending the appellant’s time to serve and file opposition papers.

The plaintiffs’ papers made out a prima facie case for summary judgment. We have considered the appellant’s papers in opposition and conclude that he failed to establish that issues of fact exist precluding summary judgment. Moreover, the appellant waived the issue of the plaintiffs’ defective filing (see, CPLR 306-a, 306-b) by litigating this action for almost two years before raising the issue (see, Matter of Fry v Village of Tarrytown, 89 NY2d 714).

We have considered the appellant’s remaining contentions and find them to be without merit. Bracken, J. P., Rosenblatt, Ritter and Luciano, JJ., concur.