Opinion
Index No. 506838/2015
03-30-2023
Glenn N. DEANS, as Executor of the Estate of Robert Lee, Deceased, and Emma Deans Lee, Plaintiffs, v. NASSAU COUNTY PUBLIC ADMINISTRATOR, as Administrator of the Estate of Hillary John Hurtado, M.D., Wellwood Medical, P.C., Isaac R. Madeb, M.D., Issac Madeb, MD P.C., ILM Medical Care, PLLC, Brooklyn, Long Island Urology Associates P.C., Nassau Extended Care Facility, Nassau\Operating Co. LLC and Sentosacare, LLC, Defendants.
Recitation, as required by CPLR § 2219 [a], of the papers considered in the review: NYSCEF #s: 137, 138, 139-156; 157-164, 165; 166.
Defendants, ISAAC R. MADEB, M.D., ISSAC MADEB, MD P.C., ILM MEDICAL CARE, PLLC, and BROOKLYN LONG ISLAND UROLOGY ASSOCIATES, P.C. by their attorneys, ELLENBERG GANNON HENNINGER & FITZMAURICE, LLP, move this court for an order for summary judgment pursuant to CPLR § 3212 dismissing Plaintiff's Complaint against Defendants ISAAC R. MADEB, M.D., ISSAC MADEB, MD P.C., and ILM MEDICAL CARE, PLLC. Plaintiffs oppose this motion.
As a preliminary matter, the court notes that while the notice of motion omits a request for summary judgment on behalf of Defendants BROOKLYN LONG ISLAND UROLOGY ASSOCIATES, P.C., the affirmation submitted in support of the Defendants' motion does make such a request.
Plaintiff objects to the summary judgment motion as being untimely in their opposition. The note of issue was filed in this case on December 16, 2022. The instant motion was filed by Defendants on February 16, 2022, 62 days after the note of issue was filed. In their reply, Defendants state that they were not aware of the two-day delay until after they were notified by Plaintiff's counsel. Defendants argue that the delay is inadvertent, de minimis, and did not result in any prejudice to Plaintiff.
In Kings County, "a party is required to make its motion for summary judgment no more than 60 days after the note of issue is filed, unless it obtains leave of the court on good cause shown." Popalardo v. Marino , 83 AD3d 1029, 1030 [2d Dept. 2011] ; see Kennedy v. Bae , 51 AD3d 980, 981 [2d Dept. 2008] ; Gonzalez v. Pearl , 179 AD3d 645[2d Dept 2020]. The Court of Appeals has stated that a showing of good cause for the delay in filing a motion for summary judgment is required by CPLR 3212(a). See Brill v. City of New York , 2 NY3d 648, 652 [2004] ; See Matter of Gilmore , 131 AD3d 1058 [2d Dept. 2015] [affirming the granting of a summary judgment motion made one day late when the hospital's counsel established good cause for the delay by submitting an affirmation stating that he was called out of the office for a family emergency the day the motion was due (internal citations omitted)].
The Court of Appeals goes on to state that "[n]o excuse at all, or a perfunctory excuse, cannot be ‘good cause.’ " Brill v. City of New York , 2 NY3d at 652 . Further, if the record does not establish good cause for the delay, the court may not consider the merits of the motion no matter the length of delay. See Milano v. George , 17 AD3d 644, 645 [2d Dept 2005] [affirming the trial court's denial of summary judgment motion that was filed one day late]. The courts in New York State are prohibited from considering a motion for summary judgment that was filed late, no matter the lack of prejudice to the non-moving party or the merit of the claims therein. See CPLR 3212[a] ; Brill v. City of New York , 2 NY3d at 652 ; Thompson v. New York City Bd. of Educ. , 10 AD3d 650, 657 [2d Dept. 2004]. A showing of good cause is required for a court to extend the deadline for a summary judgment motion to be filed. See Lanza v. M-A-C Home Design and Construction Corp. , 188 AD3d 855 [2d dept. 2020].
"The absence of prejudice to the plaintiff did not constitute good cause for the delay." See Gibbs v. McRide Cab Co. , 10 AD3d 671 [2d Dept 2004], citing Brill v. City of New York , 2 NY3d 648. In a case where a motion for summary judgment was submitted 142 days after the note of issue was filed, the Appellate Division stated that the moving party's "contentions that no prejudice resulted from its delay and that its motion was meritorious were insufficient justifications to permit late filing." Gaines v. Shell-Mar Foods, Inc. , 21 AD3d 986, 988 [2d Dept 2005] citing Gibbs v. McRide Cab Co. , 10 AD3d 671 [2d Dept. 2004] ; Thompson v. New York City Bd. of Educ. , 10 AD3d at 651.
In Breiding v. Giladi , the defendant movant claimed law office failure as good cause for delay. See Breiding v. Giladi , 15 AD3d 435 [2d Dept. 2005]. The Court held that the "defendants' perfunctory claims of unspecified clerical inadvertence and reassignment of counsel were insufficient to constitute good cause for the delay." Id.; see Miceli v. State Farm Mut. Auto. Ins. Co. , 3 NY3d 725 [2004] ; Brill v. City of New York , 2 NY3d 648. A perfunctory claim of law office failure does not establish good cause for a summary judgment motion to be filed after the deadline or for a court to extend the time to file a motion for summary judgment. See Lanza v. M-A-C Home Design and Construction Corp. , 188 AD3d at 856 ; Breiding v. Giladi , 15 AD3d 435 ; Brill v. City of New York , 2 NY3d 648.
Here, the Kings County Supreme Court Uniform Civil Term Rules, Part C6 states that, "motions for summary judgment may be made no later than sixty (60) days after the filing of a Note of Issue. In both instances, the above time limitation may only be extended by the Court upon good cause shown. See CPLR § 3212(a)." In this case, Defendants' excuse for filing the instant motion late, is tantamount to perfunctory law office failure and does not constitute good cause. See Brill v. City of New York , 2 NY3d 648 ; Breiding v. Giladi , 15 AD3d 435. As such, this court is precluded from entertaining Defendants' untimely summary judgment motion without regard to the merit of the application and/or the lack of prejudice to the non-moving party. See CPLR 3212[a] ; Brill v. City of New York , 2 NY3d at 652 ; Thompson v. New York City Bd. of Educ. , 10 AD3d at 657.
Accordingly, the motion is DENIED.