Harrington v. Palmer Mobile Homes, Inc.

• Decision Date: 11 March 2010
• Citation: 900 N.Y.S.2d 152,71 A.D.3d 1274
• Parties: Yvonne K. HARRINGTON et al., Respondents, v. PALMER MOBILE HOMES, INC., Doing Business as Palmer Manufactured Homes, Appellant.
• Court: New York Supreme Court — Appellate Division

900 N.Y.S.2d 152
71 A.D.3d 1274

Yvonne K. HARRINGTON et al., Respondents,
v.
PALMER MOBILE HOMES, INC., Doing Business as Palmer Manufactured Homes, Appellant.

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

March 11, 2010.

900 N.Y.S.2d 153

Wilson, Elser, Moskowitz, Edelman & Dicker, L.L.P., Albany (Douglas R. Kemp of counsel), for appellant.

Welch & Zink, Corning (David H. Jacobs of counsel), for respondents.

Before: PETERS, J.P., SPAIN, LAHTINEN, STEIN and GARRY, JJ.

GARRY, J.

71 A.D.3d 1274

Appeal from an order of the Supreme Court (Fitzgerald, J.), entered December 10, 2008 in Schuyler County, which, among other things, denied defendant's motion to preclude certain evidence and/or for summary judgment dismissing the complaint.

Plaintiff Yvonne K. Harrington owned a mobile home in which her son, plaintiff David T. Heath, resided. The mobile home was damaged by fire in November 2000 ¹ and, in 2003, plaintiffs commenced this negligence action. In March 2008, Supreme Court issued a scheduling order that, among other things, required all dispositive motions to be made returnable at a term of court in August 2008 or, with leave of court, at a subsequent term on October 3, 2008, and required motions in limine to be filed, served and submitted by October 1, 2008.² On October 1, 2008, without obtaining court permission, defendant mailed a motion, made returnable October 24, 2008, seeking an order precluding plaintiffs from offering expert testimony and certain evidence, and an order directing summary judgment in defendant's favor. The court denied the motion in its entirety, without prejudice. Defendant appeals.

Supreme Court has the authority to control its calendar by establishing schedules and timetables ( see Thomas v. Benedictine Hosp., 296 A.D.2d 781, 784, 745 N.Y.S.2d 606 [2002] ). Its broad discretion to supervise disclosure and fashion appropriate remedies for

71 A.D.3d 1275

noncompliance will not be disturbed absent "a clear abuse of that discretion"

900 N.Y.S.2d 154

( McMahon v. Aviette Agency, 301 A.D.2d 820, 821, 753 N.Y.S.2d 605 [2003]; see Doherty v. Schuyler Hills, Inc., 55 A.D.3d 1174, 1175-1176, 866 N.Y.S.2d 410 [2008] ). Defendant's request for summary judgment was served without leave or explanation well after the deadlines established more than six months earlier. Contrary to defendant's claim, plaintiffs' alleged failure to timely file the note of issue did not absolve defendant from its independent obligation to comply...