De Gannes v. Elpenord
| Citation | 2011 N.Y. Slip Op. 50003,30 Misc.3d 1206,958 N.Y.S.2d 645 |
| Decision Date | 03 January 2011 |
| Docket Number | No. 18834/08.,18834/08. |
| Parties | Natasha De GANNES, Plaintiff, v. Jean H. ELPENORD and Adom Rental Transportation, Inc., Defendants. |
| Court | United States State Supreme Court (New York) |
OPINION TEXT STARTS HERE
Marc Reibman, Esq., Reibman & Weiner, Brooklyn, for Plaintiff.
Cynthia Hung, Esq., Baker, McEvoy, Morrisey & Moskovits, P.C., New York, for Defendants.
Defendants, JEAN H. ELPENORD and ADOM RENTAL TRANSPORTATION, INC., move, pursuant to CPLR Rule 3212, for leave to move late for summary judgment and for summary judgment and dismissal of plaintiff's complaint. The motion is denied because it is “late.” Further, defendants failed to demonstrate “good cause” to hear the motion on its merits.
In the instant tort action, the note of issue was filed with the Kings County Clerk on July 9, 2010. Defendants JEAN H. ELPENORD and ADOM RENTAL TRANSPORTATION, INC. made the instant summary judgment motion on November 23, 2010, 137 days post note of issue and failed to make any showing of good cause for leave of the Court for an extension of time to make the instant summary judgment motion more than 60 days beyond the July 9, 2010 filing of the note of issue.
Thus, the instant motion violates CPLR Rule 3212(a) and Kings County Supreme Court Uniform Civil Term Rule C(6). CPLR Rule 3212(a) states:
Time; kind of action. Any party may move for summary judgment in any action, after issue has been joined; provided however, that the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown. [Emphasis added]
Kings County Supreme Court Uniform Civil Term C(6), effective January 2, 2010 and derived from the prior Kings County Supreme Court Uniform Civil Term Rule 13, states:
Post Note of Issue Summary Judgment Motion: In cases where the City of New York is a defendant and is represented by the Tort Division of the Corporation counsel's office, summary judgement motions may be made no later than 120 days after the filing of a Note of Issue. In all other matters, including third party actions, motions for summary judgment may be made no later than 60 days after the filing of a Note of Issue. In both instances the above time limitations may only be extended by the Court upon good cause shown. See CPLR 3212(a). [Emphasis added].
Therefore, the instant summary judgment motion is denied. ( See Riccardi v. CVS Pharmacy, Inc., 60 AD3d 838 [2d Dept 2009]; Finger v. Saal, 56 AD3d 606 [2d Dept 2008]; Kennedy v. Bae, 51 AD3d 980 [2d Dept 2008]; McNally v. Beva Cab Corp., 45 AD3d 820 [2d Dept 2007]; Davidson v. Brisman, 40 AD3d 574 [2d Dept 2007]; Giordano v. CSC Holdings, Inc., 29 AD3d 948 [2d Dept 2006]; Bevilacqua v. City of New York, 21 AD3d 340 [2d Dept 2005]; Milano v. George, 17 AD3d 644 [2d Dept 2004]; First Union Auto Finance, Inc. v. Donat, 16 AD3d 372 [2d Dept 2005] ).
Defendants claim that the instant summary judgment should not be deemed “late” because there was discovery outstanding on July 9, 2010 when the note of issue and certificate of readiness were filed. Moreover, defendants allege that plaintiff was not deposed until September 28, 2010. Defendants assert that the note of issue is a “legal nullity” because of material misrepresentations by plaintiff on July 9, 2010 that discovery had been completed. Thus, they claim that the instant motion is not “late.” Defendants, in support of this, cite Blackwell v. Long Island College Hosp. 303 A.D.2d 615 [2d Dept 2003] and Garafolo v. Mercy Hosp., 271 A.D.2d 642 [2d Dept 2000]. However, in these two cases, plaintiffs filed notes of issue in response to CPLR Rule 3216(b)(3) demands to prosecute. The Appellate Division, Second Department, in both Blackwell and Garafolo, after finding that the notes of issue misrepresented that discovery had been completed, allowed the dismissal of plaintiffs' actions. However, in the instant action, there is no delay by plaintiff or a written demand “to resume prosecution of the action and file a note of issue within ninety days after receipt of such a demand,” pursuant to CPLR Rule 3216(b)(3). In fact, “CPLR 3216 is, by its terms, extremely forgiving,' in that it never requires, but merely authorizes the Supreme Court to dismiss a plaintiff's action based upon the plaintiff's unreasonable neglect to proceed.” (Davis v. Goodsell, 6 AD3d 382, 383 [2d Dept 2004] ).
Defendants, in the instant action, knew when they were served with the note of issue and certificate of readiness that discovery was not completed. They should not have waited to move for summary judgment, but should have moved within 20 days after service of the note of issue to vacate the note of issue. The Uniform Civil Rules for the Supreme Court, 22 NYCRR § 202.21(e) clearly states:
Vacating note of issue. Within 20 days after service of a note of issue and certificate of readiness, any party to the action or special proceeding may move to vacate the note of issue, upon affidavit showing in what respects the case is not ready for trial, and the court may vacate the note of issue if it appears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of this section in some material respect
“A note of issue should be vacated when it is based upon a certificate of readiness that contains erroneous facts, such as that discovery has been completed.” (Drapaniotis v. 36–08 33rd Street Corp., 288 A.D.2d 254 [2d Dept 2001] ). ( See Gaskin v. Ilowitz, 69 AD3d 563 [2d Dept 2010]; Amoroso v. City of New York, 66 AD3d 618 [2d Dept 2009]; Ferreira v. Village of Kings Point, 56 AD3d 718 [2d Dept 2008]; Lynch v. Vollono, 6 AD3d 505 [2d Dept 2004]; Gregory v. Ford Motor Credit Co., 298 A.D.2d 496 [2d Dept 2002] ).
Further, defendants contend that even if the Court considers the instant motion “late,” the premature filing of a note of issue is “good cause” to excuse their delay in making the instant motion. They cite Gonzalez ex rel. Gonzalex v. 98 Mag Leasing Corp. (95 N.Y.2d 124 [2000] ). Defendants have misread Gonzalez. The Court, in Gonzalez, at 129, held:
[I]n the present case, the trial court did not abuse its discretion in concluding that there was good cause to entertain defendants' motion...
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