Davidson v. Brisman

• Decision Date: 01 May 2007
• Docket Number: 2006-08784.
• Citation: 2007 NY Slip Op 03874,40 A.D.3d 574,833 N.Y.S.2d 406
• Parties: RAMONA DAVIDSON, Respondent, v. ADAM BRISMAN, Appellant.
• Court: New York Supreme Court — Appellate Division

40 A.D.3d 574

833 N.Y.S.2d 406

2007 NY Slip Op 03874

RAMONA DAVIDSON, Respondent, v. ADAM BRISMAN, Appellant.

2006-08784.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided May 1, 2007.

In an action, inter alia, to recover damages for dental malpractice, the defendant appeals from an order of the Supreme Court, Kings County (Levine, J.), dated August 4, 2006, which denied his motion to deem his then-pending summary judgment motion timely served.

Ordered that the order is affirmed, with costs.

It is undisputed that rule 13 of the Uniform Civil Trial Rules of the Supreme Court, Kings County, required that the defendant's motion for summary judgment be served within 60 days of the filing of the note of issue (see CPLR 3212 [a]). The defendant contends that the note of issue filed by the plaintiff on March 22, 2006 was not valid because it was not accompanied by a certificate of readiness (see 22 NYCRR 202.21 [a]), and therefore the note of issue did not trigger the 60-day period. However, the defendant did not demonstrate that the note of issue was not accompanied by the certificate of readiness when the note of issue was filed. Therefore, the defendant failed to meet the rule 13 deadline, and he failed to establish good cause for the delay (see Bevilacqua v City of New York, 21 AD3d 340 [2005]; First Union Auto Fin., Inc. v Donat, 16 AD3d 372, 373 [2005]). Accordingly, the Supreme Court providently denied the defendant's motion to deem his then-pending summary judgment motion timely served.

Crane, J.P., Santucci, Florio, Dillon and Balkin, JJ., concur.