Summary
In Ragoonananv.43-25 Hunter, LLC, the plaintiff movant claimed an outstanding deposition was essential to the summary judgment motion and that it served as good cause for the delay in filing the motion.
Summary of this case from Stoopler v. O'LearyOpinion
2020-09572 Index No. 705444/17
03-15-2023
Avin RAGOONANAN, appellant, v. 43–25 HUNTER, LLC, et al., respondents.
William Schwitzer & Associates, P.C., New York, NY (D. Allen Zachary of counsel), for appellant. Fabiani Cohen & Hall, LLP, New York, NY (Kevin B. Pollak of counsel), for respondents.
William Schwitzer & Associates, P.C., New York, NY (D. Allen Zachary of counsel), for appellant.
Fabiani Cohen & Hall, LLP, New York, NY (Kevin B. Pollak of counsel), for respondents.
FRANCESCA E. CONNOLLY, J.P., ROBERT J. MILLER, PAUL WOOTEN, LILLIAN WAN, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Pam Jackman Brown, J.), dated May 14, 2020. The order denied the plaintiff's motion for leave to extend the time to move for summary judgment, and thereupon, for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1).
ORDERED that the order is affirmed, with costs.
On April 7, 2017, the plaintiff allegedly was injured at a work site when he fell from scaffolding that collapsed. At the time of the accident the plaintiff was employed by a subcontractor on the project. In April 2017, the plaintiff commenced this action to recover damages for personal injuries against 43–25 Hunter, LLC, the owner of the work site, and Hunter G.C., LLC (hereinafter Hunter G.C.), the general contractor for the project. The plaintiff alleged, inter alia, a violation of Labor Law § 240(1). On April 23, 2019, the plaintiff filed a note of issue, which indicated that there was outstanding discovery, including conducting a deposition of the defendants' representative. The defendants' representative, Sean Cavanagh, the general superintendent for Hunter G.C., was deposed on August 21, 2019. On October 23, 2019, the plaintiff moved to extend his time to move for summary judgment, and thereupon, for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1). That motion was removed from the calendar in error, and made again in February 2020. In an order dated May 14, 2020, the Supreme Court denied the plaintiff's motion. The plaintiff appeals.
Pursuant to CPLR 3212(a), unless the court directs otherwise, a motion for summary judgment "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" (see Brill v. City of New York, 2 N.Y.3d 648, 651, 781 N.Y.S.2d 261, 814 N.E.2d 431 ; Lanza v. M–A–C Home Design & Constr. Corp., 188 A.D.3d 855, 856, 135 N.Y.S.3d 495 ). Absent a "satisfactory explanation for the untimeliness," constituting good cause for the delay, an untimely summary judgment motion must be denied without consideration of the merits ( Brill v. City of New York, 2 N.Y.3d at 652, 781 N.Y.S.2d 261, 814 N.E.2d 431 ; see Dojce v. 1302 Realty Co., LLC, 199 A.D.3d 647, 649, 157 N.Y.S.3d 478 ). "While significant outstanding discovery may, in certain circumstances, constitute good cause for a delay in making a motion for summary judgment," the movant must establish that the discovery was "essential to its motion" ( Navarro v. Damac Realty, LLC, 202 A.D.3d 1100, 1101, 159 N.Y.S.3d 887 [internal quotation marks and alterations omitted]). "This standard generally requires that the discovery be relevant to resolving disputed issues of fact" ( Fuczynski v. 144 Div., LLC, 208 A.D.3d 1153, 1155, 175 N.Y.S.3d 82 ; see Johnson v. Peconic Diner, 31 A.D.3d 387, 388, 818 N.Y.S.2d 543 ). Further, "[e]ven if the discovery is essential, good cause for the delay will only exist if the party promptly moves for summary judgment after securing such discovery" ( Fuczynski v. 144 Div., LLC, 208 A.D.3d at 1155, 175 N.Y.S.3d 82 ).
Here, the plaintiff failed to demonstrate that the outstanding deposition of Cavanagh was essential to his motion for summary judgment (see Navarro v. Damac Realty, LLC, 202 A.D.3d at 1101, 159 N.Y.S.3d 887 ; Avezbakiyev v. City of New York, 104 A.D.3d 888, 888–889, 960 N.Y.S.2d 910 ). While the plaintiff argued that he needed to conduct the deposition to confirm the status of the defendants as owner of the work site and general contractor, respectively, those facts were not in dispute (see Tower Ins. Co. of N.Y. v. Razy Assoc., 37 A.D.3d 702, 703, 830 N.Y.S.2d 726 ). Moreover, even following the completion of the deposition, the plaintiff did not promptly seek an extension and failed to articulate any reason for his delay of approximately two months in moving for summary judgment after the deposition (see Torres v. Serlin Bldg. Ltd. Partnership, 208 A.D.3d 1195, 175 N.Y.S.3d 108 ).
In light of our determination, we need not reach the plaintiff's remaining contentions.
Accordingly, the Supreme Court properly denied the plaintiff's motion to extend his time to move for summary judgment, and thereupon, for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1).
CONNOLLY, J.P., MILLER, WOOTEN and WAN, JJ., concur.