Asaro v. City of New York

Full title: ANTHONY ASARO et al., Respondents, v. CITY OF NEW YORK et al., Appellants

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Jun 9, 2005

19 A.D.3d 167 (N.Y. App. Div. 2005)

795 N.Y.S.2d 890

Opinion

6275.

June 9, 2005.

Orders, Supreme Court, New York County (Leland DeGrasse, J.), entered December 14 and November 19, 2004, which, respectively, denied defendants' motion for summary judgment dismissing the complaint and granted plaintiffs' motion to serve an amended bill of particulars, unanimously affirmed, without costs.

Weidenbaum Harari, LLP, New York (Allan H. Carlin of counsel), for appellants.

DiJoseph Portegello, P.C., New York (Arnold E. DiJoseph III of counsel), for respondents.

Before: Mazzarelli, J.P., Andrias, Saxe, Marlow and Sullivan, JJ.

Since defendants did not demonstrate "good cause" for their failure to comply with the time constraints of CPLR 3212 (a), their motion for summary judgment was properly rejected as untimely ( Brill v. City of New York, 2 NY3d 648; see also Miceli v. State Farm Mut. Auto. Ins. Co., 3 NY3d 725). Moreover, the court did not improvidently exercise its discretion in affording plaintiffs leave to file a supplemental bill of particulars to allege additional code violations ( see Noetzell v. Park Ave. Hall Hous. Dev. Fund Corp., 271 AD2d 231, 232-233; Orros v. Yick Ming Yip Realty, 258 AD2d 387, 388).