Thompson v. New York City Board of Education

10 A.D.3d 650, 781 N.Y.S.2d 617, 2004 N.Y. App. Div. LEXIS 10742

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 13, 2004
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Bruno, J.), dated July 11, 2003, which, inter alia, granted the defendant’s motion for summary judgment dismissing the complaint.

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

The Supreme Court improvidently exercised its discretion in considering the defendant’s untimely motion for summary judgment in view of the defendant’s failure to offer a satisfactory explanation for not serving the motion within 120 days of the filing of the note of issue as required by CPLR 3212 (a) (see Brill v City of New York, 2 NY3d 648 [2004]). In the absence of such a “good cause” showing, the court has no discretion to entertain even a meritorious, nonprejudicial motion for summary judgment (id.). Thus, the motion should have been denied, “and the case returned to the trial calendar, where a motion to dismiss after plaintiff rests or a request for a directed verdict may dispose of the case during trial” (id. at 653). Altman, J.P., Smith, Krausman and Skelos, JJ., concur.