Jones v. Town of Le Ray

28 A.D.3d 1177, 813 N.Y.S.2d 686

Opinion

Appeal from an order of the Supreme Court, Jefferson County (Hugh A. Gilbert, J.), entered February 16, 2005 in a personal injury and wrongful death action. The order granted defendant’s motion for summary judgment dismissing the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied and the complaint is reinstated.

Memorandum: Supreme Court erred in entertaining defendant’s motion for summary judgment dismissing the complaint and in thereupon granting the motion. Pursuant to CPLR 3212 (a), the court may set a date by which summary judgment motions must be made, provided that the date is no earlier than 30 days after the filing of the note of issue. Where, as here, no date is set, a summary judgment motion shall be made no later than 120 days after the filing of the note of issue “except with leave of court on good cause shown” {id.). The note of issue herein was filed on February 23, 2004, and thus any summary judgment motion had to be made no later than June 22, 2004. Defendant failed to move for summary judgment dismissing the complaint by that date and thus was required to show good cause for the failure to do so. Defendant’s failure to provide any excuse for the delay requires denial of the motion {see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]; see also Polhamus v Foulke, 20 AD3d 888 [2005]). Present—Pigott, Jr., P.J., Hurlbutt, Gorski, Martoche and Hayes, JJ.