Risucci v. Zeal Management Corp.

• Decision Date: 08 February 1999
• Parties: 1999 N.Y. Slip Op. 1043 Dorothy RISUCCI, appellant, v. ZEAL MANAGEMENT CORP., et al., defendants, Condo Units L.P., et al., respondents.
• Court: New York Supreme Court — Appellate Division

Page 280

685 N.Y.S.2d 280

1999 N.Y. Slip Op. 1043

Dorothy RISUCCI, appellant, v. ZEAL MANAGEMENT CORP., et al., defendants, Condo Units L.P., et al., respondents.

Supreme Court, Appellate Division,

Second Department.

Feb. 8, 1999.

Mallilo & Grossman, Flushing, N.Y. (Francesco Pomara, Jr., and Anthony S. Bellino of counsel), for appellant.

Epstein, Hill, Grammatico & Gann, Mineola, N.Y. (Lawrence A. Salvato of counsel), for respondents Condo Units L.P., and Andrew Jackson Condominium.

CORNELIUS J. O'BRIEN, J.P., THOMAS R. SULLIVAN, GABRIEL M. KRAUSMAN and ANITA R. FLORIO, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Golar, J.), dated November 12, 1997, which granted the motion of the defendants Condo Units L.P., and Andrew Jackson Condominium for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

On August 21, 1993, the plaintiff tripped on a protruding screw that was part of the pool cover system located at the condominium complex where she resided. The pool was owned, operated, maintained, managed and/or controlled by the defendants. The defendants Condo Units L.P., and Andrew Jackson Condominium (hereinafter the respondents), moved for summary judgment dismissing the complaint insofar as asserted against them because, according to the condominium's superintendent's affidavit, they had neither actual nor constructive notice of the alleged dangerous condition. In their motion, the respondents demanded that the plaintiff serve her answering papers at least seven days before the time the motion was noticed to be heard since they served their motion at least 12 days prior to that time, pursuant to CPLR 2214(b). However, the plaintiff did not serve her opposition papers until the return date of the motion. The Supreme Court refused to consider the plaintiff's untimely opposition papers and granted summary judgment to the respondents. The plaintiff appeals.

The Supreme Court did not improvidently exercise its discretion by refusing to consider the plaintiff's opposition papers, despite no showing of prejudice to the respondents, as she failed to provide a valid excuse for the late service (see, Bush v. Hayward, 156 A.D.2d 899, 549 N.Y.S.2d 873; Romeo v. Ben-Soph Food Corp., 146 A.D.2d 688, 537 N.Y.S.2d 52).

Even considering the plaintiff's opposition, the...