Rivera v. City of New York

Appellate Division of the Supreme Court of New York

Rivera v. City of New York

73 A.D.3d 413, 899 N.Y.S.2d 603

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 4, 2010

StatusPublished

This text of 73 A.D.3d 413 (Rivera v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rivera v. City of New York, 73 A.D.3d 413, 899 N.Y.S.2d 603 (N.Y. Ct. App. 2010).

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Opinion

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered March 13, 2009, which, in an action for personal injuries, insofar as appealed from as limited by the briefs, granted defendant’s cross motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, defendant’s cross motion denied, and the matter remanded for further proceedings.

Defendant’s cross motion for summary judgment, which was made in response to a motion by plaintiff characterized by the motion court as one to restore the action to the calendar, should have been denied as untimely, as defendant failed to show good cause for making the cross motion more than 120 days after the filing of the note of issue (CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648, 652 [2004]). At least where, as here, the 120-day time limit had expired before the case was struck from the calendar, we reject defendant’s argument that the 120-day limit does not apply to cases that have been struck from the calendar. We note Brill's express prohibition against consideration of unexcused, untimely motions no matter how meritorious or nonprejudicial (id. at 653, especially n 4; see Perini Corp. v City of New York, 16 AD3d 37, 39-40 [2005]). Concur—Gonzalez, P.J., Tom, Renwick, DeGrasse and Abdus-Salaam, JJ.

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Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered March 13, 2009, which, in an action for personal injuries, insofar as appealed from as limited by the briefs, granted defendant’s cross motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, defendant’s cross motion denied, and the matter remanded for further proceedings.

Defendant’s cross motion for summary judgment, which was made in response to a motion by plaintiff characterized by the motion court as one to restore the action to the calendar, should have been denied as untimely, as defendant failed to show good cause for making the cross motion more than 120 days after the filing of the note of issue (CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648, 652 [2004]). At least where, as here, the 120-day time limit had expired before the case was struck from the calendar, we reject defendant’s argument that the 120-day limit does not apply to cases that have been struck from the calendar. We note Brill's express prohibition against consideration of unexcused, untimely motions no matter how meritorious or nonprejudicial (id. at 653, especially n 4; see Perini Corp. v City of New York, 16 AD3d 37, 39-40 [2005]). Concur—Gonzalez, P.J., Tom, Renwick, DeGrasse and Abdus-Salaam, JJ.

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Bluebook (online)

73 A.D.3d 413, 899 N.Y.S.2d 603, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rivera-v-city-of-new-york-nyappdiv-2010.

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