Opinion
2011-11-15
Colleen DERBY, appellant,v.Fabian BITAN, etc., respondent.
Rosalee Charpentier, Kingston, N.Y., for appellant.
Aaronson Rappaport Feinstein & Deutsch, LLP, New York, N.Y. (Elliott J. Zucker of counsel), for respondent.
In an action to recover damages for medical malpractice, lack of informed consent, and breach of contract, the plaintiff appeals from an amended order of the Supreme Court, Dutchess County (Pagones, J.), dated August 26, 2010, which granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the amended order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.
The plaintiff filed a note of issue on March 15, 2010, and the defendant moved for summary judgment dismissing the complaint on July 14, 2010. The plaintiff opposed the defendant's motion on the ground that it was untimely. The Supreme Court determined that the motion was timely and thereupon, granted the motion. We reverse.
CPLR 3212(a) provides that a motion for summary judgment may not be made more than 120 days after the filing of the note of issue “except with leave of court on good cause shown.” Here, contrary to the defendant's contention, his motion for summary judgment was made 121 days after the note of issue was filed and, therefore, it was untimely ( see CPLR 3212[a]; see also General Construction Law § 20). Since the defendant did not seek leave of the court, and failed to offer any reason for the delay, there was no “leave of court on good cause shown,” as required by CPLR 3212(a), and the defendant's motion should have been denied without consideration of the merits ( see Miceli v. State Farm Mut. Auto. Ins. Co., 3 N.Y.3d 725, 726–727, 786 N.Y.S.2d 379, 819 N.E.2d 995; Brill v. City of New York, 2 N.Y.3d 648, 652, 781 N.Y.S.2d 261, 814 N.E.2d 431; Lyons v. Donnelly, 54 A.D.3d 393, 393, 862 N.Y.S.2d 291; Lofstad v. S & R Fisheries, Inc., 45 A.D.3d 739, 743, 846 N.Y.S.2d 283; Jones v. Ricciardelli, 40 A.D.3d 936, 936, 836 N.Y.S.2d 665).
The plaintiff's contention regarding recusal is not properly before this Court ( see Ferdinand v. Ferdinand, 56 A.D.3d 604, 604, 867 N.Y.S.2d 335; Oparaji v. Scheiner, 50 A.D.3d 753, 754, 854 N.Y.S.2d 655).
The parties' remaining contentions either are without merit or need not be addressed in light of the foregoing determination.
DILLON, J.P., DICKERSON, CHAMBERS and MILLER, JJ., concur.