Perini Corp. v. Ny City

• Decision Date: 03 February 2005
• Docket Number: 4878.
• Citation: 16 A.D.3d 37,789 N.Y.S.2d 29,2005 NY Slip Op 00630
• Parties: PERINI CORPORATION, Appellant, v. CITY OF NEW YORK (DEPARTMENT OF ENVIRONMENTAL PROTECTION), Respondent.
• Court: New York Supreme Court — Appellate Division

16 A.D.3d 37

789 N.Y.S.2d 29

2005 NY Slip Op 00630

PERINI CORPORATION, Appellant, v. CITY OF NEW YORK (DEPARTMENT OF ENVIRONMENTAL PROTECTION), Respondent.

4878.

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

February 3, 2005.

Appeal from an order of the Supreme Court, New York County (Michael D. Stallman, J.), entered September 16, 2003. The order granted defendant's motion for summary judgment dismissing the complaint.

Law Offices of Melvin J. Kalish, Mineola (Melvin J. Kalish and William A. Jaskola of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York City (Elizabeth S. Natrella, Pamela Seider Dolgow and Robina M. Gumbs of counsel), for respondent.

OPINION OF THE COURT

MARLOW, J.

After the order on appeal was rendered, the Court of Appeals spoke clearly and decisively on what constitutes "good cause" for obtaining an extension of time to comply with the statutory requirements for moving for summary judgment after a party files a note of issue (see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]; Brill v City of New York, 2 NY3d 648 [2004]). We take this opportunity to emphasize and to caution the bar that the language of Miceli and Brill is clear and strict. Therefore, the rule these holdings address may not be approached casually without significant risk of adverse consequences. Furthermore, in the wake of Miceli and Brill, parties may no longer rely on the merits of their cases to extricate themselves from failing to show good cause for a delay in moving for summary judgment pursuant to CPLR 3212 (a).

Here, defendant City of New York failed to demonstrate good cause, as the Court of Appeals has recently defined that phrase. Therefore, we reverse the order on appeal, wherein the Supreme Court granted summary judgment to defendant, and reinstate the complaint.

On December 4, 1996, plaintiff contractor commenced this breach-of-contract action against defendant for extra work performed at the Hunts Point Water Pollution Control Plant. After issue was joined and discovery exchanged, a note of issue was filed on June 4, 2001. At an "Early Settlement Unit Conference" on June 27, 2002, defendant's attorney represented that she intended to move for summary judgment, and the conference was adjourned until September 26, 2002. However, on that date, defendant had not yet moved for summary judgment as promised. It was not until the next day that defendant moved, by order to show cause, for leave to file a late summary judgment motion.

In explaining the delay in moving for summary judgment, counsel for defendant maintained that about a month after June 4, 2001, the date plaintiff's attorney filed the note of issue a personal problem required her to take some time off. Thereafter, access to the City's law department offices was restricted in the aftermath of the September 11, 2001 terrorist attack. Shortly after counsel's department was relocated to temporary space in Brooklyn, counsel became ill and was on sick leave for several months. Counsel did not specify when she returned to work. She claimed that when she did return to work, her office and files were being relocated back to lower Manhattan, but many files had been lost or misplaced. Counsel did not specify whether the file in this particular action had been lost or misplaced, or whether or when it had been retrieved. In any event, at the June 27, 2002 conference, counsel indicated that she intended to move for summary judgment, but subsequently offered no explanation why the motion had not been made within the ensuing three months. Instead, counsel claimed that plaintiff had failed to strictly comply with certain contractual notice provisions which were conditions precedent to the lawsuit, and that therefore, defendant was entitled to judgment as a matter of law.

Plaintiff opposed the motion on the ground that defendant had not demonstrated good cause for its failure to move for summary judgment prior to the September 26, 2002 conference date. As to the merits, plaintiff argued that it had substantially complied with the contractual notice provisions.

Although the motion court acknowledged that defendant had offered no excuse for its three-month delay in moving for summary judgment between the June and September...