Demacopoulos v. City of N.Y.

• Decision Date: 11 May 2010
• Citation: Demacopoulos v. City of N.Y., 899 N.Y.S.2d 889, 73 A.D.3d 842 (N.Y. App. Div. 2010)
• Parties: Vaso DEMACOPOULOS, etc., plaintiffs-respondents, v. CITY OF NEW YORK, et al., defendants-respondents, Caporusso Contracting Corp., appellant, et al., defendant.
• Court: New York Supreme Court — Appellate Division

899 N.Y.S.2d 889

73 A.D.3d 842

Vaso DEMACOPOULOS, etc., plaintiffs-respondents,

v. CITY OF NEW YORK, et al., defendants-respondents,Caporusso Contracting Corp., appellant, et al., defendant.

Supreme Court, Appellate Division, Second Department, New York.

May 11, 2010.

Milber Makris Plousadis & Seiden, LLP, White Plains, N.Y. (David C. Zegarelli of counsel), for appellant.

Dell, Little, Trovato & Vecere, LLP, Bohemia, N.Y. (John S. McDonnell of counsel), for plaintiffs-respondents.

Flanzig & Flanzig, LLP, Mineola, N.Y. (Daniel Flanzig of counsel), for defendant-respondent John Koundourakis.

In an action to recover damages for personal injuries, etc., the defendant CaporussoContracting Corp. appeals from an order of the Supreme Court, Queens County (Kerrigan, J.), entered July 29, 2009, which denied its motion pursuant to CPLR 3212 for leave to serve and file a late motion for summary judgment and for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

ORDERED that the order is affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

Generally, unless a trial court specifies otherwise, a party has 120 days after the filing of a note of issue to move for summary judgment, after which it may do so only with "leave of court on good cause shown" (CPLR 3212 [a] ). CPLR 3212(a) "requires a showing of good cause for the delay in making the motion-a satisfactory explanation for the untimeliness-rather than simply permitting meritorious, nonprejudicial filings, however tardy" ( Brill v. City of New York, 2 N.Y.3d 648, 652, 781 N.Y.S.2d 261, 814 N.E.2d 431). A trial court has discretion in determining whether to consider a motion for summary judgment made more than 120 days after the filing of a note of issue ( see CPLR 3212[a]; Gonzalez v. 98 Mag Leasing Corp., 95 N.Y.2d 124, 129, 711 N.Y.S.2d 131, 733 N.E.2d 203).

Here, the Supreme Court providently exercised its discretion in denying the motion of the defendant Caporusso Contracting Corp. for leave to serve and file a late motion for summary judgment and for summary judgment dismissing the complaint and all cross claims insofar as asserted against it because it failed to make the requisite showing ( see CPLR 3212[a]; Brill v. City of New York, 2 N.Y.3d at 652-653, 781 N.Y.S.2d 261, 814 N.E.2d 431; Joson v. G & S Realty 1, LLC, 68 A.D.3d 1061, 890 N.Y.S.2d 351).

The parties' remaining contentions are without merit.

SKELOS...