Opinion
11-01-2016
Matthew CHMIELOWIEC, Plaintiff–Respondent, Damien Blackwood, et al., Defendants, The Noga Company, LLC, et al., Defendants–Appellants.
Steven F. Goldstein, LLP, Carle Place (Steven F. Goldstein of counsel), for appellants. Gallagher, Walker, Bianco & Plastaras, Mineola (Brian R. Kenney of counsel), for respondent.
Steven F. Goldstein, LLP, Carle Place (Steven F. Goldstein of counsel), for appellants.
Gallagher, Walker, Bianco & Plastaras, Mineola (Brian R. Kenney of counsel), for respondent.
MAZZARELLI, J.P., SAXE, MOSKOWITZ, KAHN, GESMER, JJ.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered October 9, 2015, which denied defendants-appellants' motion for summary judgment dismissing the complaint as against them on the ground that it was untimely, unanimously affirmed, without costs.
Appellants' assertion that they were unaware that the case had been assigned to Justice Guzman's part before they moved for summary judgment is unsupported by the record and therefore cannot be considered (see Chimarios v. Duhl, 152 A.D.2d 508, 543 N.Y.S.2d 681 [1st Dept.1989] ). The assertion is also belied by their notice of motion, which is in the record, and which identifies the IAS Part and judge to which the motion should be referred. Since appellants provided no explanation for filing their motion for summary judgment outside the time period set by the rules of the assigned IAS judge, the motion court did not improvidently exercise its discretion in denying the motion as untimely (see Fine v. One Bryant Park, LLC, 84 A.D.3d 436, 921 N.Y.S.2d 524 [1st Dept.2011] ; see also CPLR 3212[a] ; Brill v. City of New York, 2 N.Y.3d 648, 652, 781 N.Y.S.2d 261, 814 N.E.2d 431 [2004] ).