Opinion
1798.
December 2, 2003.
Order, Supreme Court, New York County (Leland DeGrasse, J.), entered May 14, 2003, which denied the motion of defendant New York School Construction Authority (SCA) to dismiss the complaint pursuant to CPLR 4401 or, alternatively, for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Seth A. Levine, for Plaintiff-Respondent.
Michael R. Gordon, for Defendant-Appellant.
Before: Saxe, J.P., Rosenberger, Williams, Marlow, Gonzalez, JJ.
In moving, at the close of plaintiff's direct case, for judgment in its favor pursuant to CPLR 4401, defendant SCA raised nine arguments, but the trial court, in granting the motion, premised its determination on the single ground that plaintiff had not filed a timely notice of claim and did not reach defendant's remaining points. This Court thereafter reversed, reinstated the complaint and remanded the matter for a new trial ( 293 A.D.2d 189). SCA then sought to renew its CPLR 4401 motion so as to obtain the complaint's dismissal based on the arguments not reached by the trial court on its initial consideration of the motion or, alternatively, for summary judgment dismissing the complaint pursuant to CPLR 3212. We now affirm the denial of the motion. Assuming, for argument's sake, that, despite its untimeliness and our direction that the matter be retried, there is good cause to entertain that branch of SCA's motion seeking summary judgment ( see CPLR 3212[a]), a grant of summary judgment to SCA would nonetheless be inappropriate inasmuch as the record made in support of the requested summary relief does not establish SCA's entitlement to judgment as a matter of law but rather discloses the existence of triable issues of fact. This being so, it is unnecessary for us to reach the question of whether it would be appropriate to permit SCA, some two and onehalf years after trial and subsequent to our order remanding the matter for a new trial, to renew its motion pursuant to CPLR 4401 for judgment during trial.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.