McFadden v. 530 Fifth Avenue Rps III Associates

• Decision Date: 04 April 2006
• Docket Number: 7785C.,7785B.,7785.,7785A.
• Citation: 812 N.Y.S.2d 88,28 A.D.3d 202,2006 NY Slip Op 02460
• Court: New York Supreme Court — Appellate Division
• Parties: MARY McFADDEN, Respondent, v. 530 FIFTH AVENUE RPS III ASSOCIATES, LP, et al., Appellants, et al., Defendant.

28 A.D.3d 202

812 N.Y.S.2d 88

2006 NY Slip Op 02460

MARY McFADDEN, Respondent, v. 530 FIFTH AVENUE RPS III ASSOCIATES, LP, et al., Appellants, et al., Defendant.

7785.

7785A.

7785B.

7785C.

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

April 4, 2006.

Judgment, Supreme Court, New York County (Karen Smith, J.), entered November 4, 2004, after a jury trial, in favor of the plaintiff and against defendants, in the aggregate amount of $351,267, plus interest and disbursements, and bringing up for review (1) an order on the same record, same court and Justice, entered May 4, 2004, allowing late disclosure and testimony of plaintiff's exchanged liability expert witness, (2) an order, same court and Justice, entered June 25, 2004, which granted plaintiff's motion to set aside the verdict and ordered a new trial on past and future pain and suffering and past medical expenses, and (3) an order, same court (Louis B. York, J.), entered March 4, 2004, which denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the judgment vacated and defendants' motion for summary judgment granted. The Clerk is directed to enter judgment in favor of defendants 530 Fifth Avenue RPS III Associates, LP and Silverstein Properties, Inc. dismissing the complaint. Appeals from the aforesaid orders unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

This is an action for personal injury damages sustained in a bathroom slip and fall apparently caused by a toilet backup and overflow. Defendants' successive motions for summary judgment and a directed verdict were denied on the grounds, respectively, of timeliness and lack of merit.

After issue is joined, a motion for summary judgment should, unless otherwise ordered by the IAS court, be made no later than 120 days after a note of issue is filed (CPLR 3212 [a]). The local Supreme Court rules applicable in the instant case shorten the time to 60 days within which such motion must be made. Although defendants moved for summary judgment more than 60 days after the note of issue was filed, they were never served with a copy of the note of issue, and did not learn of it until after the 60-day period had expired. While CPLR 3212 (a) and the applicable local rule specify the date of filing of the note of issue as the triggering date for the time within which to bring a summary judgment motion, and do not...