Cajamarca v. Euro Marble Ctr., Inc.

• Citation: 2012 NY Slip Op 31891
• Decision Date: 15 May 2012
• Docket Number: Index No.: 25228/09
• Parties: Livia Cajamarca, Plaintiff, v. Euro Marble Center, Inc., George A. Efstatthopoulos, Tabares Emperatri and Luis E. Vigoya, Defendants.
• Court: United States State Supreme Court (New York)

2012 NY Slip Op 31891

Livia Cajamarca, Plaintiff,
v.
Euro Marble Center, Inc., George A. Efstatthopoulos, Tabares Emperatri and Luis E. Vigoya, Defendants.

Index No.: 25228/09

NEW YORK STATE SUPREME COURT - QUEENS COUNTY IAS TERM, PART 19

Dated: May 15, 2012

Short Form Order

Present: HONORABLE BERNICE D. SIEGAL
Justice

Motion Date: 5/15/12 Motion Cal. No.: 3 Motion Seq. No.: 3

The following papers numbered 1 to 15 read on this motion for an order pursuant to CPLR §3212, granting summary judgment to defendant Vigoya, on the ground that the plaintiff has failed to meet the statutory requirements of a "serious injury" under New York State Insurance Law §5102.

+-----------------------------------------------+
                ¦ ¦PAPERS ¦
                ¦ ¦ ¦
                ¦ ¦NUMBERED¦
                +--------------------------------------+--------¦
                ¦Notice of Motion - Affidavits-Exhibits¦1 - 4 ¦
                +--------------------------------------+--------¦
                ¦Notice of Cross-Motion- Affidavits ¦5 - 9 ¦
                +--------------------------------------+--------¦
                ¦Affirmation In Opposition ¦10 - 12 ¦
                +--------------------------------------+--------¦
                ¦Reply ¦13 - 15 ¦
                +-----------------------------------------------+
                

Upon the foregoing papers, it is hereby ordered that the motion is resolved as follows: Defendants Tabares Emperatriz and Luis E. Vigoya ("Moving Defendants") move for an order pursuant to CPLR §3212 granting summary judgment in their favor on the issue of liability as co-defendants were the sole proximate cause of the motor vehicle accident and alternatively, granting summary judgment against plaintiff on the issue of threshold, thereby dismissing the Summons and Complaint. Defendants Euro Marble Center, Inc and George A. Efstatthopoulos

Page 2

("Cross-Moving Defendants") cross-move for summary judgment dismissing plaintiff's complaint on the issue of threshold and oppose the motion for summary judgment on the issue of liability.

In the within action, Note of Issue was filed on May 15, 2011, however, various discovery remained outstanding. On August 9, 2011, the parties entered into a stipulation wherein the plaintiff agreed to be produced for a deposition ("EBT") on or before September 15, 2011 and the defendants were to designate physicians to conduct Independent Medical Exams ("IME") within five days thereafter with the IME to be conducted within thirty days after the completion of plaintiff's EBT. The parties also agreed that the time to serve dispositive motion would be extended to sixty days following the completion of IME's. (Moving Defendants Exhibit E.) The court notes that the stipulation was not So Ordered by the court.

CPLR §3212(a) provides that motions for summary judgment shall be made no later than 120 days after the filing of the note of issue, except with leave of court on "good cause" shown. Under the standard announced in Brill v. City of New York, 2 N.Y.3d 648 (2004), leave to file a late motion for summary judgment under CPLR §3212(a) requires a showing of a satisfactory explanation for the delay in filing the motion. "Good cause" requires a satisfactory...