Scocozza v. Tolia

• Decision Date: 21 June 1999
• Citation: 691 N.Y.S.2d 799,262 A.D.2d 548
• Parties: JOYCE SCOCOZZA, as Executor of RALPH SCOCOZZA, Deceased, Respondent,<BR>v.<BR>JITENDRA N. TOLIA, Appellant.
• Court: New York Supreme Court — Appellate Division

262 A.D.2d 548

691 N.Y.S.2d 799

JOYCE SCOCOZZA, as Executor of RALPH SCOCOZZA, Deceased, Respondent,

v.JITENDRA N. TOLIA, Appellant.

Decided June 21, 1999.

Santucci, J. P., Joy, Feuerstein and Schmidt, JJ., concur.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court improvidently exercised its discretion in permitting the defendant to submit a motion for partial summary judgment more than one year after the note of issue was filed, and on the eve of trial, in view of the fact that the defendant did not demonstrate any good cause for the inordinate delay (see, CPLR 3212 [a]; Rich v Ciano, 254 AD2d 268; Anzalone v Varis, 254 AD2d 381; Krug v Jones, 252 AD2d 572; Phoenix Garden Rest. v Chu, 245 AD2d 164). In any event, we agree with the Supreme Court that there remain triable issues of fact with respect to whether the decedent experienced conscious pain and suffering prior to his death (see generally, Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557; Singer v Friedman, 220 AD2d 574).

The defendant's remaining contentions are without merit.