Williams v. Miller, 2008 NY Slip Op 31418(U) (N.Y. Sup. Ct. 5/7/2008)

• Decision Date: 07 May 2008
• Docket Number: Sequence No. 005.,No. 017953/05.,Sequence No. 004.,017953/05.
• Citation: 2008 NY Slip Op 31418
• Parties: BARBARA WILLIAMS. Plaintiff, v. MICHAEL R. MILLER, M.D., UMC MEDICAL CONSULTANTS, P.C. and RICHARD C. MEOLI, D.C. Defendants.
• Court: New York Supreme Court

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2008 NY Slip Op 31418(U)

BARBARA WILLIAMS. Plaintiff, v. MICHAEL R. MILLER, M.D., UMC MEDICAL CONSULTANTS, P.C. and RICHARD C. MEOLI, D.C. Defendants.

No. 017953/05.

Sequence No. 004.

Sequence No. 005.

Supreme Court of the State of New York, Nassau County.

May 7, 2008.

DANIEL MARTIN, Judge.

This motion by the defendant Richard C. Meoli, D.C., and cross-motion by the defendants Michael R. Miller, M.D. and UMC Medical Consultants, P.C., for an order pursuant to CPLR 3212(a) granting them leave to file summary judgment motions and an order pursuant to CPLR 3212 granting them summary judgment dismissing the complaint is determined as provided herein.

The first issue which must be addressed is whether the moving defendants' motions for summary judgment may be considered. Although the Preliminary Conference order dated September 14, 2006, provided that a motion for summary judgment must be made within 90 days of the filing of the Note of Issue, that requirement was modified by this court's Certification Order dated August 2, 2007, which required that such a motion be made within 60 days of the filing of the Note of Issue. A Note of Issue was filed on October 1, 2007. Defendant Meoli's original motion for summary judgment was made in accordance with the Preliminary Conference order, i.e., within 90 days of the filing of the Note of Issue and defendants Miller and UMC Medical Consultant's cross-motion was made on January 17, 2008, a few weeks late. After defense counsel learned of the Certification Order's amendment to the time limits for seeking summary judgment at oral argument on January 24, 2008, the original motion and cross-motion were withdrawn so that the defendants' applications could be amended to include applications for extensions of time in which to seek summary judgment.

"The merits of an untimely motion for summary judgment may be considered by the court only if the movant demonstrates `good cause for the delay in making the motion-a satisfactory explanation for the untimeliness.'" Crawford v. Liz Claiborne, Inc., 45 A.D.3d 284 (1^st Dept. 2007), quoting Brill v. City of New York, 2 N.Y.3d 648, 652 (2004). Where a movant makes a motion for summary judgment after the expiration of a court-ordered deadline which is shorter than the 120-day deadline set forth in CPLR 3212(a), a demonstration of good cause for the delay is still required. Mizell v. Eastman & Bixby Redevelopment Co., LLC, 34 A.D.3d 770 (2^nd Dept. 2006), citing Miceli v. State Farm Mut. Auto. Ins. Co., 3 N.Y.3d 725 (2004).

Defense counsel for defendant Meoli has established that their original summary judgment motion was made in accordance with the time limit set forth in this court's Preliminary Conference Order; that they were not served with a copy of this court's Certification Order; nor did they otherwise acquire knowledge of the change in the time in which summary judgment motions could be made until after their original motion was made. Defendant Meoli has demonstrated good cause for his delay in seeking summary judgment and he is granted leave to move for summary judgment beyond the limits set forth in this court's Certification Order. See, McFadden v. 530 Fifth Ave. RPS III Assoc., LP, 28 A.D.3d 202, 203 (1^st Dept. 2006) (movants lack of knowledge that Note of Issue was filed constituted good cause); see also, Vila v. Cablevision of NYC, 28 A.D.3d 248 (1^st Dept. 2006); (confusion as to expiration of time period constituted good cause); Cooper v. Hodge, 13 A.D.3d 1111 (4^th Dept. 2004) (plaintiff and defense counsel's confusion re court ordered deadline constituted good cause); but see, Crawford v. Liz Claiborne, Inc., supra, at p. 275, (counsel's lack of awareness of local court rules does not constitute good cause).

While defense counsel for defendants Miller and UMC Medical Consultants, P.C. have established that they, too, had no knowledge of the reduction of the time in which summary judgment applications could be made, their original motion was late even under the more generous time constraints set forth in this court's Preliminary Conference Order. Moreover, their untimely "cross motion" is actually a "motion," since it does not seek relief against the moving party. CPLR 2215; Mango v. Long Island Jewish-Hillside Medical Center, 123 A.D.2d 843 (2^nd Dept. 1986). Nevertheless, "an untimely motion or cross-motion for summary judgment may be considered by the court where, as here, a timely motion for summary judgment was made on nearly identical grounds." Grande v. Peteroy, 39 A.D.3d 590 (2^nd Dept. 2007); see also, Ellman v. Village of Rhinebeck, 41 A.D.3d 635 (2^nd Dept. 2007), Iv den., 9 N.Y.3d 812 (2007); Boehme v. A.P.P.L.E., 298 A.D.2d 540 (2^nd Dept. 2002); Miranda v. Devlin, 260 A.D.2d 451 (2^nd Dept. 1999); compare, Bressingham v. Jamaica Hosp. Med. Ctr., 17 A.D.3d 496 (2^nd Dept. 2005). The issues raised by defendants Miller and UMC Medical Consultants, P.C. are already properly before the court pursuant to the defendant Meoli's motion. The identical nature of the grounds of these motions provides the requisite "good cause" required by CPLR 3212(a) to allow defendants Miller and UMC Medical Consultants' untimely motion. Grande v. Peteroy, supra; compare, Bickelman v. Herrill Bowling Corp., 49 A.D.2d 578, (2^nd Dept. 2008). In fact, this court in any event has the discretion in deciding the motion to search the record and award summary judgment to a non-moving party. Grande v. Peteroy, supra; see, also, Ellman v. Village of Rhinebeck, 41 A.D.3d 635 (2^nd Dept. 2007); Bressingham v. Jamaica Hosp. Med. Ctr., supra; Boehme v. A.P.P.L.E., supra; Miranda v. Devlin, supra. Defendants Miller and UMC are also granted leave to move for summary judgment beyond the time limit set forth in this court's Certification Order.

The plaintiff in this action seeks to recover damages for personal injuries she allegedly sustained when the chiropractic examining table she went to sit on allegedly lowered. The defendants seek summary judgment dismissing the complaint on the grounds that it was impossible for the plaintiffs accident to have occurred as she has described it thus far. The pertinent facts are as follows:

The plaintiff appeared at the offices of UMC Medical Associates for an Independent Medical Examination by an orthopedist, the defendant Michael C. Miller, M.D., on April 8, 2003. The defendant Richard C. Meoli, D.C. owns the offices and defendant UMC Medical Consultants rented them. At her examination-before-trial, the plaintiff testified that when she "attempted to sit on the adjustable electric chiropractic table, [it] lowered rapidly, causing [her] to fall." She testified that she "sat on the section where people put their head" and she did not attempt to sit on any other part of the table. Plaintiff testified at her examination-before-trial that her bottom made contact with the table for a brief second at the tissue paper area, which, again, is clearly the headrest, and that the table then lowered. She also testified at her examination-beforetrial that the part of the table with the sanitary paper on it (the headrest) lowered in some manner and that neither her feet or any part of her body ever made contact with the levers or pedals on the table. It is not disputed that the doctor promptly realigned the table. The plaintiff now attests that:

"[a]fter [Dr.] Miller entered the room, he faced [her] from the opposite side of the chiropractic table and indicated that [she] should sit on the table. So [she] took a step towards the table, turned [her] back and backed up to sit on the table. As [she] went to sit, the table abruptly moved away from [her] bottom, and [she] fell to the floor onto [her] right hand, knee and leg."

She now attests that she "never stated that only the head portion of the table moved downward and caused [her] to fall" and that "[f]rom [her] perspective and the location where [she] was asked to sit, the table moved away from [her] body."

"On a motion for summary judgment pursuant to CPLR 3212, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact." Sheppard-Mobley v. King, 10 A.D.3d 70, 74 (2d Dept. 2004), affd. as mod., 4 N.Y.3d 627 (2005), citing Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986); Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers." Sheppard-Moblev v. King, supra, at p. 74; Alvarez v. Prospect Hosp., supra; Winegrad v. New York Univ. Med. Ctr., supra. Once the movant's burden is met, the burden shifts to the opposing party to establish the existence of a material issue of fact. Alvarez v. Prospect Hosp., supra, at p. 324. The evidence presented by the opponents of summary judgment must be accepted as true and they must be given the benefit of every reasonable inference. See, Demishick v. Community Housing Management Corp., 34 A.D.3d 518 (2d Dept. 2006), citing Secof v. Greens Condominium, 158 A.D.2d 591 (2d Dept. 1990).

The defendants had the...