Opinion
105847/94.
Decided September 16, 2005.
Philip Pierce, Esq., Margolin Pierce, LLP, attorneys for plaintiff; Biedermann, Hoenig, Massamillo Ruff, P.C., Elaine N. Chou, Of Counsel, attorneys for respondents.
Defendant seeks leave to move for summary judgment (CPLR 3212(a)), dismissing plaintiff's action for loss of profits, based on its business interruption stemming from the February, 1993 World Trade Center bombing, and upon granting leave, dismissing plaintiff's complaint. Plaintiff is a law firm that maintained its offices at One World Trade Center.
Leave is required because this motion was made more than 120 days after plaintiff filed its note of issue on August 26, 2002. Defendant contends that good cause exists for allowing the late filing because it refrained from moving for summary judgment, while a motion for summary judgment based on liability for negligence was pending.
In opposing the motion, plaintiff argues that defendant has not demonstrated a sufficient reason for permitting this motion, as it was filed long after 120 days after the note of issue was filed.
Defendant's application for permission to move for summary judgment, three years after plaintiff filed its note of issue, is denied. Defendant has failed to offer a satisfactory explanation for its long delay in moving.
Defendant contends that it refrained from moving because of a motion for summary judgment, based on liability for the bombing itself, pending in this court and the Appellate Division. Mr. Justice Sklar's order denying summary judgment ( Matter of World Trade Center Bombing Litigation, 3 Misc 2d 440) was entered on January 20, 2004. The First Department affirmed that order on December 2, 2004 ( 13 AD3rd 60), and denied leave to appeal to the New York Court of Appeals on February 28, 2005. Defendant filed the instant motion on June 5, 2005.
Defendant's voluntary choice not to bring this motion while the liability motion was pending does not excuse its delay. There was no legal impediment to bring the motion. Even if there was an automatic stay in effect during the appellate process (CPLR 5519(a)(1)), that stay only barred plaintiff from taking any action; however, defendant was not similarly stayed. In any event, defendant does not explain why it waited three months after the appellate process ended, before bringing this motion (see, Perini Corporation v. City of New York, 16 AD3rd 37). Nor does it explain why it did not move, prior to that motion.
CPLR 3212(a) establishes a strict time limit in which to move for summary judgment. "No excuse at all, or a perfunctory excuse, cannot be good cause" for ignoring its constraints ( Brill v. City of New York, 2 NY3rd 648, 652). Defendant's excuse in this case is at best perfunctory, as it fails to demonstrate how the pendency of another motion prevented it from moving, and fails to explain its long delay after that motion was decided on appeal.
Whether defendant has made a sufficient showing on the merits, that would otherwise entitle it to judgment is not a relevant factor in excusing a late motion ( Micheli v. State Farm Mutual Insurance Company, 3 NY3rd 725). In any event, plaintiff has offered proof, based on deposition testimony of persons with knowledge of the purported facts, sufficient to establish the existence of triable issues of fact necessary to defeat summary judgment (cf Zuckerman v. City of New York, 49 NY2d 557).
Accordingly, it is
ORDERED that the motion is denied.
This constitutes the decision and order of the court.