Long v. Children's Village, Inc.

24 A.D.3d 518, 805 N.Y.S.2d 286

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 12, 2005
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Queens County (LeVine, J.), dated September 2, 2004, which, upon the granting of the defendant’s oral application, in effect, for summary judgment dismissing the complaint, dismissed the complaint.

Ordered that the judgment is reversed, on the law, with costs, the application is denied, and the complaint is reinstated.

The Supreme Court correctly characterized the defendant’s oral application, made on the eve of trial, as one, in effect, for summary judgment. However, upon doing so, it improvidently exercised its discretion in entertaining the application on its merits. It was made some 17 months after the note of issue was filed, and the defendant made no explanation for the delay in making its application (see CPLR 3212 [a]; Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]; Brill v City of New York, 2 NY3d 648 [2004]). In the absence of a satisfactory explanation for the delay, the application should not have been considered, even if it appeared to be meritorious (see Brill v City of New York, supra; Rivera v Toruno, 19 AD3d 473 [2005]; Hesse v Rockland County Legislature, 18 AD3d 614 [2005]).

The defendant’s remaining contentions are either without merit or need not be reached in light of our determination. H. Miller, J.P., Luciano, Fisher and Covello, JJ., concur.