Opinion
2016-09514 Index No. 12522/14
01-08-2020
Allen GONZALEZ, et al., respondents, v. Richard PEARL, etc., et al., appellants, et al., defendants.
Halperin & Halperin, P.C., New York, N.Y. (Steven T. Halperin and James Irish of counsel), for appellant Richard Pearl. Gerspach Sikoscow, LLP, New York, N.Y. (Cameron W. Brown of counsel), for appellant Alan Saber. Sanocki Newman & Turret, LLP, New York, N.Y. (Carl B. Tegtmeier and David B. Turret of counsel), for respondents.
Halperin & Halperin, P.C., New York, N.Y. (Steven T. Halperin and James Irish of counsel), for appellant Richard Pearl.
Gerspach Sikoscow, LLP, New York, N.Y. (Cameron W. Brown of counsel), for appellant Alan Saber.
Sanocki Newman & Turret, LLP, New York, N.Y. (Carl B. Tegtmeier and David B. Turret of counsel), for respondents.
ALAN D. SCHEINKMAN, P.J., JEFFREY A. COHEN, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.
DECISION & ORDER ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.
The injured plaintiff, and his wife suing derivatively, commenced this action against, among others, the defendants Richard Pearl and Alan Saber (hereinafter together the defendants), alleging that the defendants committed medical malpractice by failing to remove a prosthetic femoral head that was lost in the injured plaintiff's body during a hip replacement surgery. Following discovery, the defendants separately moved for summary judgment dismissing the complaint insofar as asserted against each of them. Rather than file opposition papers, the plaintiffs moved by order to show cause, among other things, to reject those motions as untimely.
In an order dated July 20, 2016, the Supreme Court, inter alia, granted those branches of the plaintiffs' motion which were to reject the defendants' separate motions as untimely, and denied those motions as academic. The defendants separately appeal.
Pursuant to CPLR 3212(a), courts have "considerable discretion to fix a deadline for filing summary judgment motions," so long as the deadline is not "earlier than 30 days after filing the note of issue or (unless set by the court) later than 120 days after the filing of the note of issue, except with leave of court on good cause shown" ( Brill v. City of New York, 2 N.Y.3d 648, 651, 781 N.Y.S.2d 261, 814 N.E.2d 431 ; see CPLR 3212[a] ). 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 A.D.3d 1029, 1030, 922 N.Y.S.2d 158 ; see Kennedy v. Bae, 51 A.D.3d 980, 981, 857 N.Y.S.2d 509 ). Here, the defendants' separate motions for summary judgment were untimely because they were not served within 60 days after the filing of the note of issue. Further, the court providently exercised its discretion in determining that the defendants failed to establish good cause to excuse their delays (see CPLR 3212[a] ; Luciano v. H.R.H. Constr., LLC, 89 A.D.3d 578, 579, 933 N.Y.S.2d 17 ; Giudice v. Green 292 Madison, LLC, 50 A.D.3d 506, 858 N.Y.S.2d 111 ).
Accordingly, we agree with the Supreme Court's determination to grant those branches of the plaintiffs' motion which were to reject, as untimely, the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of them. In light of the foregoing, we also agree with the court's determination to deny, as academic, the defendants' motions (see Luciano v. H.R.H. Constr., LLC, 89 A.D.3d at 579, 933 N.Y.S.2d 17 ).
SCHEINKMAN, P.J., COHEN, MALTESE and LASALLE, JJ., concur.