McKinney v. New York City Housing Authority

272 A.D.2d 529, 708 N.Y.S.2d 893, 2000 N.Y. App. Div. LEXIS 5835

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 22, 2000
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kings County (Rappaport, J.), dated June 30, 1999, which denied its motion for summary judgment as untimely.

Ordered that the order is reversed, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for a determination of the plaintiffs’ application for an extension of time to serve and file opposition papers on the motion, and for a new determination of the motion.

The infant plaintiff allegedly was injured when she slipped and fell in the defendant’s stairwell. The defendant moved for summary judgment, claiming that it did not create or have actual or constructive notice of the allegedly dangerous condition. The plaintiffs sought an extension of time to serve and file opposition papers. The Supreme Court denied the defendant’s motion as untimely without ruling on the plaintiffs’ application.

Contrary to the conclusion of the Supreme Court, the defendant’s motion was timely made (see, CPLR 2211; 3212 [a]; Russo v Eveco Dev. Corp., 256 AD2d 566). We further note that the defendant made a prima facie showing of entitlement to judgment as a matter of law (see, Gordon v American Museum of Natural History, 67 NY2d 836, 837; Piacquadio v Recine Realty Corp., 84 NY2d 967). However, the Supreme Court did not rule on the question of whether the plaintiffs should be afforded additional time to submit papers to rebut that showing.

Accordingly, the matter is remitted to the Supreme Court, Kings County, for a determination of the plaintiffs’ application for an extension of time to serve and file opposition papers, and for a new determination of the motion. Joy, J. P., Goldstein, H. Miller and Schmidt, JJ., concur.