Opinion
Index No. 114595/10 Index No. 590675/11
07-18-2013
ANTHONY BONGIORNI, Plaintiff, v. 277 NORTH LLC, CJR PROPERTIES, LLC, THYSSENKRUPP ELEVATOR CORPORATION and SOLID STATE ELEVATOR CORP., Defendant. 277 NORTH LLC, Third-party Plaintiff, v. CARPET IMAGE INC., Third-party Defendant.
OPINION
RICHARD F. BRAUN, J.:
This is a personal injury action arising out a of a ceiling light panel in an elevator falling on plaintiff. Defendants 277 North LLC and Thyssenkrupp Elevator Corporation move for summary judgment dismissing the complaint in this action. Plaintiff opposes the motion contending, among other things, that it is untimely as it was filed beyond the 60 day deadline for dispositive motions set in the preliminary conference order.
The motion is untimely. The April 5, 2011 preliminary conference order provided for dispositive motions to be made within 60 days of the filing of the note of issue. The note of issue was filed on July 13, 2012, and the motion was not served until November 8 or 9, 2012, 118 or 119 days later. CPLR 3212 (a) provides that "the court may set a date after which no [summary judgment] motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court, on good cause shown." The Court of Appeals has made it clear that the deadline for dispositive motions is a strict one, and a showing of merit to the motion is insufficient to establish good cause for a late summary judgment motion (see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726-727 [2004]; Brill v City of New York, 2 NY3d 648, 652 [2004]).
Defendants contend that they delayed making the summary judgment motion while they tried to obtain a deposition of a non-party witness who may have provided relevant testimony. Further, defendants maintain that their copy of the preliminary conference order setting the deadline for dispositive motions was illegible and that the Part Clerk told a clerk in defense counsel's office that the Part's deadline for filing summary judgment motions was 120 days after the filing of the note of issue.
That defendants merely sought to obtain a non-party deposition in conjunction with a misapprehension of the outside date for summary judgment motions is not sufficient to establish good cause to disregard the deadline for summary judgment set in the preliminary conference order (cf. Azcona v Salem, 49 AD3d 343 [1st Dept 2008] ["The legislatively imposed deadline for filing summary judgment motions must be strictly followed, and courts may not excuse a late motion, no matter how meritorious, upon a perfunctory claim of law office failure (citation omitted)."]). WhileCourt ordered post-note of issue discovery can provide good cause to extend the time to move for summary judgment (see e.g. Pena v Women's Outreach Network, Inc., 35 AD3d 104, 108-109 [1st Dept 2006]), the mere prospect of trying to obtain a non-party deposition that might support the motion after filing a note of issue is insufficient to establish good cause for a late summary judgment motion (cf. Brown v City of New York, 22 Misc3d 893, 897-898 [Sup Ct., NY County 2008] ["The reference to taking of non-party depositions post-note of issue, fails to specify dates or identify the witnesses and does not establish any connection between the factual content of the depositions and the delay in bringing the summary judgment motion."]; Neil v New York City Hous. Auth., 15 Misc 3d 1115 (A), 2007 NY Slip Op 50698 (U) [Sup Ct, Kings County 2007] ["The fact that Ms. Belnavis's non-party deposition occurred after the filing of the Note of Issue does not excuse the City for failing to bring the summary judgment motion for more than 120 days after the completion of the deposition."], aff'd 48 AD3d 767 [2nd Dept 2008]). Furthermore, there was no showing of special, unusual or extraordinary circumstances permitting post-note of issue discovery (22 NYCRR 202.21 [d]; Grant v Wainer, 179 AD2d 364, 364-365 [1st Dept 1992])
To the extent that the copy of the preliminary conference order in defense counsel's possession was illegible, a legible copy could have been obtained from adversary counsel, or the original could have been viewed in and copied from the County Clerk's file. Given that rule 17 of the New York County Supreme Court, Civil Branch, Rules of the Justices provides that the 120 day period can be shortened in a particular case in the preliminary conference order, and the court did so in the preliminary conference order, proposed by and agreed to by the attorneys for the parties signing the proposed order, reliance on a purported comment by a Part Clerk as to the Part's general practice was inadequate to establish good cause for the late motion (see Caraballo v Montefiore Med. Ctr., 89 AD3d 638, 639 [1st Dept 2011] ["Plaintiff's purported reliance on an unnamed court employee's directive to complete the discovery process then file (the) Note of Issue is not a reasonable excuse" (internal quotation marks omitted)]; Frazzetta v. P.C. Celano Contr., 54 AD3d 806, 809 [2nd Dept 2008] [the plaintiffs could not reasonably rely on a law clerk's view that compliance with deadlines was not mandatory]; Rose v 735 Realty Co., LLC, 36 Misc 3d 145 (A), 2012 NY Slip Op 51603(U) [App Term, 1st Dept 2012] ["Plaintiff's claimed reliance on an unnamed court employee's purported advice that the demand was not valid did not constitute a reasonable excuse"]). Finally, the First Department has made it clear that the court does not have the power to consider a summary judgment motion filed beyond a court set deadline, but within the statutory 120 days, unless good cause is demonstrated for the delay (see Glasser v Abramovitz, 37 AD3d 194 [2007]).
Accordingly, by separate July 17, 2013 decision and order, the motion was denied. This constitutes the opinion of this Court. Dated: New York, New York
July 18, 2013
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RICHARD F. BRAUN, J.S.C.