Opinion
Index No. CV-703234-20/QU
12-06-2021
JJ & R CHIROPRACTIC, PC A/A/O Desocorro, Plaintiff(s), v. INTEGON NATIONAL INSURANCE COMPANY, Defendant(s).
Plaintiff's counsel: Mandell and Santora, PC, 29 Broadway, Lynbrook, NY 11563, Lynbrook, NY 11563 Defendant's counsel: Moira A. Doherty, 999 Stewart Avenue, Suite 200, Bethpage, NY 11714
Plaintiff's counsel: Mandell and Santora, PC, 29 Broadway, Lynbrook, NY 11563, Lynbrook, NY 11563
Defendant's counsel: Moira A. Doherty, 999 Stewart Avenue, Suite 200, Bethpage, NY 11714
Wendy Changyong Li, J.
I. Papers
The following papers were read on Defendant's motion for summary judgment dismissing Plaintiff's complaint:
Papers/Numbered
Defendant's Notice of Motion and Affirmation in Support dated January 5, 2021 ("Motion ") and electronically filed with the court on January 21, 2021. 1
Plaintiff's Affirmation in Opposition dated May 27, 2021 ("Opposition ") and electronically filed with the court on the same date. 2
Defendant's Affirmation in Reply dated June 4, 2021 ("Reply ") and electronically filed with the court on the same date. 3
II. Background
In a summons and complaint filed on February 21, 2020, Plaintiff sued Defendant insurance company to recover $1,310.94 in unpaid first party No-Fault benefits for medical services provided to Plaintiff's assignor Desocorro, plus attorneys’ fees and statutory interest (see Motion, Aff. of Slack-Dery, Ex. A). A notice of trial was filed on August 5, 2020. On January 21, 2021, Defendant moved for an extension of time to move for summary judgment, and for summary judgment dismissing Plaintiff's complaint on the ground that the medical services provided to Desocorro were not medically necessary and alternatively, that the amount billed by Plaintiff had exceeded the applicable Workers Compensation fee schedules. Plaintiff opposed Defendant's motion for summary judgment. An oral argument by both parties was conducted by this Court on November 8, 2021.
III. Decision
CPLR 3212[a] provides:
Any party may move for summary judgment in any action, after issue has been joined; provided however, that the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion 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.
Since the notice of trial was filed on August 5, 2020, December 3, 2020 was the deadline for moving for summary judgment (see id. ). Because Defendant served its instant motion for summary judgment on January 21, 2021, it is untimely. Defendant candidly admitted to the lateness of its motion, but sought an extension of time ( CPLR 2004 ; 2005). The Court of Appeals has held that good cause under CPLR 3212[a] "requires a showing of good cause for the delay in making the motion — a satisfactory explanation for the untimeliness — rather than simply permitting meritorious, nonprejudicial filings, however tardy" ( Brill v City of New York , 2 NY3d 648, 652 [2004] ). Absent a showing of good cause for the delayed filing, this Court lacks discretion to consider a late motion even if it is meritorious and does not prejudice any party ( Bargil Assoc., LLC v Crites , 173 AD3d 958, 958 [2d Dept 2019] ; Bivona v Bob's Discount Furniture of NY, LLC , 90 AD3d 796, 796 [2d Dept 2011] ).
In our instant matter, the only explanation Defendant offered was that "Defendant's counsel was prevented from serving the subject motion as [its] offices were closed due to the Coronavirus/Covid 19 pursuant to state requirements/regulations pertaining to professional services and non-essential businesses" (Motion, Slack-Dery Aff. ¶107). Executive Order 202.6, which went into effect on March 20, 2020, provided:
All businesses and not-for-profit entities in the state shall utilize, to the maximum extent possible, any telecommuting or work from home procedures that they can safely utilize. Each employer shall reduce the in-person workforce at any work locations by 50% no later than March 20 at 8 p.m. Any essential business or entity providing essential services or functions shall not be subject to the in-person restrictions"
( 9 NYCRR 8.202.6 ). Executive Order 202.8 (collectively with Executive Order 202.6, the "Executive Orders ") increased the in-person workforce reduction to 100% by March 22, 2020 (see 9 NYCRR 8.202.8 ). Thus, rather than closing non-essential businesses as Defendant contended, the Executive Orders prohibited in-person working but allowed businesses to operate remotely. In addition, by Administrative Order of the Chief Administrative Judge, on March 22, 2020, New York State Court prohibited paper and electronic filings for non-essential matters (see AO/78/20). However, effective May 4, 2020, New York State Court permitted electronic filing of, among other things, motions in pending matters (see AO/87/20). It is noted that Defendant did not claim its counsel's offices could not work remotely or was unable to file its motion electronically.
Since Defendant failed to establish good cause for untimely filing its summary judgment motion, it must be denied ( Bargil Assoc., LLC v Crites , 173 AD3d at 959 ; Bivona v Bob's Discount Furniture of NY, LLC , 90 AD3d at 796 ), without consideration of its merits (see Miceli v State Farm Mut. Auto. Ins. Co. , 3 NY3d 725, 727 [2004] ; Giambona v Hines , 104 AD3d 811, 812 [2d Dept 2013] ; Czernicki v Lawniczak , 25 AD3d 581, 581 [2d Dept 2006] ; Long v Children's Vil., Inc. , 24 AD3d 518, 519 [2d Dept 2005] ).
IV. Order
Accordingly, it is
ORDERED that Defendant's motion for an extension of time to file a motion for summary judgment is denied; and it is further
ORDERED that Defendant's motion for summary judgment is denied as untimely.
This constitutes the DECISION and ORDER of the Court.