New York State Court of Claims

New York State Court of Claims

RUEMLER v. THE STATE OF NEW YORK, #2001-015-123, Claim No. 099851, Motion No. M-62794


Motion seeking summary judgment denied since it was not timely made pursuant to 60 day limit following filing of note of issue established by the Court's preliminary conference order.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Cook, Tucker, Netter & Cloonan, P.C.By: William N. Cloonan, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Paul F. Cagino, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
February 2, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's motion pursuant to CPLR 3212 seeking an order dismissing the claim is denied. The claimant, a self-described expert skier, seeks to recover money damages for personal injuries sustained on March 16, 1998 at Belleayre Mountain Ski Center, a ski resort owned and operated by the State of New York. After completing a downhill run claimant was proceeding toward lift #6 when she collided with another skier who left the lift line after deciding to return to the mid-hill (Overlook) ski lodge. Upon exiting the lift line the second skier proceeded toward the lodge and in doing so found himself skiing directly toward the claimant. Both skiers allegedly attempted evasive maneuvers in order to avoid a collision but turned in the same direction and collided. The second skier's skis passed over those of the claimant, they embraced and claimant fell with the other skier falling on top of her. Claimant alleges that she sustained severe and permanent injuries as a result of the accident for which she seeks compensation. Claimant alleges that her injury resulted from the State's negligent design, maintenance, signing and staffing of the area near ski lift #6. The defendant moved for summary judgment seeking dismissal of the claim.

CPLR 3212 (a) provides:
(a) Time; kind of action. Any party may move for summary judgment in any action, after issue has been joined; provided however, that the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown.
Pursuant to the authority provided by CPLR 3212(a) the Court issued both a preliminary order dated May 4, 1999 and a subsequent letter dated June 14, 2000 which advised the parties that any motion for summary judgment was to be served and filed within 60 days of the filing of the note of issue. Since the note of issue was filed on June 7, 2000 the last day for either party to file a motion for summary judgment was August 6, 2000. The instant motion filed on December 5, 2000 is, therefore, untimely (Corbi v Avenue Woodward Corp., 260 AD2d 255). Even had the Court not established the 60 day filing limit the instant motion would be untimely pursuant to CPLR 3212 (a) as having been made more than 120 days after the note of issue was filed. The defendant did not seek leave of this Court on good cause shown to extend the time limit for the filing of the motion.

February 2, 2001
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated December 1, 2000;
  2. Affirmation of Paul F. Cagino dated December 1, 2000, with exhibits;
  3. Affidavit of William N. Cloonan sworn to December 13, 2000;
  4. Affidavit of Joanne Ruemler sworn to December 9, 2000;
  5. Affidavit of Walter Kufmann sworn to December 9, 2000;
  6. Affidavit of Phillip Davenport sworn to December 13, 2000, with exhibits;
  7. Reply affirmation of Paul F. Cagino dated December 18, 2000.