Bivona v. Bob's Discount Furniture of NY, LLC
| Decision Date | 20 December 2011 |
| Citation | 935 N.Y.S.2d 605,90 A.D.3d 796,2011 N.Y. Slip Op. 09253 |
| Parties | Timothy BIVONA, et al., respondents, v. BOB'S DISCOUNT FURNITURE OF NY, LLC, appellant. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Tromello, McDonnell & Kehoe, Melville, N.Y. (Kevin P. Slattery of counsel), for appellant.
The Margiotta Law Firm, P.C., Bay Shore, N.Y. (Paul J. Margiotta of counsel), for respondents.
DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, PLUMMER E. LOTT, and ROBERT J. MILLER, JJ.
In an action, inter alia, to recover damages for negligence, the defendant appeals from an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), dated April 22, 2011, which denied, as untimely, its motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiffs commenced this action, inter alia, to recover damages for negligence after purchasing a couch from the defendant that allegedly was infested with bedbugs. The defendant served and filed a motion for summary judgment dismissing the complaint on or about October 4, 2010, more than 120 days after the filing of the note of issue March 30, 2010. In an order dated April 22, 2011, the Supreme Court denied the defendant's motion as untimely. We affirm.
“In the absence of a showing of good cause for the delay in filing a motion for summary judgment, ‘the court has no discretion to entertain even a meritorious, nonprejudicial motion for summary judgment’ ” ( Greenpoint Props., Inc. v. Carter, 82 A.D.3d 1157, 1158, 919 N.Y.S.2d 370, quoting John P. Krupski & Bros., Inc. v. Town Bd. of Town of Southold, 54 A.D.3d 899, 901, 864 N.Y.S.2d 149; see Brill v. City of New York, 2 N.Y.3d 648, 652, 781 N.Y.S.2d 261, 814 N.E.2d 431). Here, the defendant failed to establish “good cause” for the delay in serving and filing its motion (CPLR 3212[a] ). Accordingly, the Supreme Court properly denied, as untimely, the defendant's motion for summary judgment dismissing the complaint ( see Brill v. City of New York, 2 N.Y.3d at 652, 781 N.Y.S.2d 261, 814 N.E.2d 431; Castillo v. Valente, 85 A.D.3d 1080, 926 N.Y.S.2d 304; Riccardi v. CVS Pharmacy, Inc., 60 A.D.3d 838, 874 N.Y.S.2d 381).
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