Necco v. Elmcor Youth Adult Activities, Inc.

Full title: JAMES NECCO, Plaintiff, v. ELMCOR YOUTH ADULT ACTIVITIES, INC., Defendant

Court: Supreme Court of the State of New York, Queens County

Date published: May 10, 2011

2011 N.Y. Slip Op. 50846 (N.Y. Sup. Ct. 2011)

Opinion

30707/2007.

Decided May 10, 2011.

David Schachter, Esq., Jackson Heights, New York, for Plaintiff.

Callan, Koster, Brady Brennan, LLP, by Louis E. Valvo, Esq., New York, NY, for Defendant.

CHARLES J. MARKEY, J.

The following papers numbered were read on this motion:

Papers Numbered

Notices of Motion, Affirm., Exhibits ...................................... 1 Affirmations in Opposition ................................................ 2 Affirmations in Reply ..................................................... 3

On or about September 27, 2007, the plaintiff, James Necco, while a resident of defendant Elmcor Youth Adult Activities, Inc., a drug rehabilitation center located at 107-20 Northern Boulevard, in Queens County, New York was allegedly attacked by a fellow resident George Turchin, allegedly without provocation. Defendant has moved for summary judgment contending quite properly, under the facts adduced, that it could not have foreseen the attack, and that George Turchin had not been involved in any prior assault at the facility.¹

1 See, Ogletree v Rush Realty Assocs., LLC , 29 AD3d 875 [2nd Dept. 2006]; Liang v Rosedale Group Home , 19 AD3d 654 [2nd Dept. 2005]; see also, I.H. ex rel. Litz v County of Lehigh, 610 F3d 797 [3rd Cir. 2010].

David Schachter, Esq., counsel for the plaintiff, in opposition to the defense motion for summary judgment, argues in his papers and at oral argument on the motion that the defendant's delay in making the motion, well beyond the 120 days permitted by CPLR 3212(a), is grounds alone for denial of the motion. The undersigned, having independently researched the issue of law, is constrained to agree.

Plaintiff filed its note of issue with the Clerk on July 30, 2010, honoring a discovery stipulation that was signed by Justice Lee A. Mayersohn on May 18, 2010. Defendant waited until February 22, 2011, to file this motion for summary judgment. Defendant waited 207 days, or 6 months and 23 days from the time of the filing of the note of issue before moving for summary judgment.

This Court has the authority to excuse the lateness under CPLR 3212(a) "for good cause shown." The problem is that defendant does not even acknowledge the lateness of its filing in either its moving or reply papers, let alone discuss the reasons that may have caused it.

For the undersigned to discuss the substantive merits of the summary judgment motion, where the movant has not explained its lateness in filing, is not even permissible under strict and precise authority from the New York Court of Appeals. See, Miceli v State Farm Mut. Auto. Ins. Co. , 3 NY3d 725; Brill v City of New York , 2 NY3d 648 ; accord, Brewi-Bijoux v City of New York , 73 AD3d 1112 [2nd Dept. 2010]; Brown v City of New York , 22 Misc 3d 893 [Sup Ct New York County 2008]. Litigation deadlines in the view of many lawyers are merely precatory. The Court of Appeals has maintained: "Litigation cannot be conducted efficiently if deadlines are not taken seriously, and we make clear again, as we have several times before, that disregard of deadlines should not and will not be tolerated." Andrea v Arnone, Hedin, Casker, Kennedy and Drake, Architects and Landscape Architechts, P.C. , 5 NY3d 514 , 521.

Both in Miceli v State Farm Mut. Auto. Ins. Co. , 3 NY3d 725 , and Brill v City of New York , 2 NY3d 648 , the Court of Appeals reversed the grant of summary judgment on substantive grounds and denied the motions for procedural default. Failure under those controlling precedents to explain "good cause" for a late summary judgment motion requires outright denial of the motion without an examination of the motion's substantive merit.

Under those controlling precedents, the defendant's motion is denied in all respects.

This Court, having read all the transcripts of the examinations before trial and the other exhibits to all the papers on the motion, requires the defendant to turn over in 20 days the complete file in its possession concerning George Turchin and all reports and documents concerning any history of prior assaults.

The foregoing constitutes the decision, order, and opinion of the Court.