Dunham v. City of New York

Appellate Division of the Supreme Court of New York

Dunham v. City of New York

1 A.D.3d 312, 766 N.Y.S.2d 854

Appellate Division of the Supreme Court of the State of New York·Decided November 3, 2003·Published

Opinion

In an action to recover damages for wrongful death, etc., the plaintiff appeals from an order of the Supreme Court, Kings County (Bruno, J), dated December 11, 2002, which granted the defendants leave to file a late motion for summary judgment dismissing the complaint, and granted the motion.

Ordered that the order is reversed, on the facts and as a matter of discretion, with costs, the motion is denied, and the complaint is reinstated.

CPLR 3212 (a) requires that a motion for summary judgment be made within 120 days after the filing of a note of issue, except with leave of court on good cause shown. Here, the defendants filed a motion for summary judgment 16 months after the deadline, and without any explanation for the delay. Under these circumstances, the Supreme Court improvidently exercised its discretion in entertaining the motion (see Hilton v City of New Rochelle, 298 AD2d 360 [2002]; Wagner v City of New York, 271 AD2d 439 [2000]).

[313] In light of the foregoing, we need not reach the parties’ remaining contentions. Santucci, J.P., Luciano, Schmidt and Cozier, JJ., concur.

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In an action to recover damages for wrongful death, etc., the plaintiff appeals from an order of the Supreme Court, Kings County (Bruno, J), dated December 11, 2002, which granted the defendants leave to file a late motion for summary judgment dismissing the complaint, and granted the motion.

Ordered that the order is reversed, on the facts and as a matter of discretion, with costs, the motion is denied, and the complaint is reinstated.

CPLR 3212 (a) requires that a motion for summary judgment be made within 120 days after the filing of a note of issue, except with leave of court on good cause shown. Here, the defendants filed a motion for summary judgment 16 months after the deadline, and without any explanation for the delay. Under these circumstances, the Supreme Court improvidently exercised its discretion in entertaining the motion (see Hilton v City of New Rochelle, 298 AD2d 360 [2002]; Wagner v City of New York, 271 AD2d 439 [2000]).

[313] In light of the foregoing, we need not reach the parties’ remaining contentions. Santucci, J.P., Luciano, Schmidt and Cozier, JJ., concur.

Dunham v. City of New York, 1 A.D.3d 312, 766 N.Y.S.2d 854 (N.Y. Ct. App. 2003).

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Opinion

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