Summary
In Miceli (3 NY3d 725), where the moving party's attorney failed to file a summary judgment motion within 120 days of the filing of a note of issue and did not demonstrate good cause for the delay, Supreme Court erred in granting summary judgment to the movant (see also Brill, 2 NY3d 648 [same; clarifying that good cause means a reasonable excuse for the delay in making the motion]).
Summary of this case from Cadichon v. FacelleOpinion
132.
Argued September 14, 2004.
Decided October 21, 2004.
Appeal, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered June 13, 2003. The Appellate Division affirmed a judgment of the Supreme Court, Erie County (Frank A. Sedita, Jr., J.), which had granted summary judgment to plaintiff.
Miceli v. State Farm Mut. Auto. Ins. Co., 306 AD2d 903, reversed.
Rivkin Radler LLP, Uniondale ( Stuart M. Bodoff, Evan H. Krinick and Cheryl F. Korman of counsel), and Hagelin Bischof, LLC, for appellant.
Barth, Sullivan Behr, LLP, Buffalo ( Laurence D. Behr of counsel), for respondent.
Chief Judge KAYE and Judges CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur in memorandum; Judge G.B. SMITH concurs on constraint of Brill v. City of New York ( 2 N.Y.3d 648).
OPINION OF THE COURT
Memorandum.
The order of the Appellate Division should be reversed, with costs, and plaintiff's motion for summary judgment denied.
Barely five months ago, in Brill v. City of New York ( 2 N.Y.3d 648), this Court reversed an award of summary judgment for defendant, without considering its merit, on the ground that the motion, made more than 120 days after note of issue was filed, failed to comply with the statutory requirement that "good cause" be shown for the late filing. We determined that, if the merit of the motion itself constituted good cause, the statutory deadline would be circumvented and the practice of delaying such motions until the eve of trial encouraged. As the Legislature clearly specified, summary judgment motions should be timely made, or good cause shown.
As we made clear in Brill, and underscore here, statutory time frames — like court-ordered time frames ( see Kihl v. Pfeffer, 94 NY2d 118) — are not options, they are requirements, to be taken seriously by the parties. Too many pages of the Reports, and hours of the courts, are taken up with deadlines that are simply ignored.
Plaintiff does not dispute that her motion for summary judgment was made more than 120 days after note of issue was filed, and offers no excuse for her failure to comply with CPLR 3212 (a), arguing only that her motion is meritorious. This was precisely defendant's position before us in Brill. To countenance plaintiff's position here would require us to overturn our own recent precedent. This we refuse to do, and we therefore reverse the order of the Appellate Division awarding summary judgment to plaintiff, without considering the merit of the motion.
Order reversed, etc.