New York State Court of Claims

New York State Court of Claims

GUTIERREZ v. THE STATE OF NEW YORK, #2004-010-026, Claim No. 107946, Motion No. M-68805


Claimant's motion for leave to file a late summary judgment motion on the issue of liability is denied as motion was brought after the 45 day time limit established by the court.

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):

Terry Jane Ruderman
Claimant's attorney:
RICHARD J. KATZ, LLPBy: Jonathan A. Rapport, Esq.
Defendant's attorney:
Attorney General for the State of New YorkBy: Rachel Zaffrann, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 22, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1-2 were read and considered[1] by the Court on claimant's motion for leave to file a late summary judgment motion on the issue of liability:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits........................1

Attorney's Affirmation in Opposition and Exhibits.................................................2

The claim arises out of a motor vehicle accident which occurred on September 20, 2002, when claimant's vehicle was stopped at a red light and struck in the rear by defendant's vehicle. The Note of Issue was filed on May 3, 2004 and this Court's Preliminary Conference Order (PCO) dated October 1, 2003, provided that all summary judgment motions must be made "no later than forty-five days after the filing of the Note of Issue and Certificate of Readiness" (Claimant's Ex. B, p. 4). Claimant concedes that, according to this Court's Order, his motion should have been made by June 14, 2004 (Claimant's Supporting Affirmation, ¶ 10). By letter dated June 23, 2004, the Court scheduled this claim for trial to commence on November 29, 2004. On July 15, 2004, claimant filed this motion for summary judgment. Claimant admittedly failed to comply with the 45 day time limit set by the Court in its PCO. Claimant's purported excuse for the four week delay "was due to an unprofessional inattention to detail" in failing to enter the date in the firm's diary followed by the mistaken assumption that the time frame was 120 days, rather than 45 days (Claimant's Supporting Affirmation, ¶¶ 6-8).

CPLR 3212(a) provides in pertinent part:
"Any party may move for summary judgment *** provided however, that the court may set a date after which no such motion may be made *** 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." [emphasis added]

Recently, in Brill v City of New York, 2 NY3d 648,at 652-53, the Court of Appeals held that "good cause" under CPLR 3212(a) requires "a satisfactory explanation for the untimeliness -- rather than simply permitting meritorious, nonprejudicial filings, however tardy." The Court of Appeals reasoned that, "[h]opefully, as a result of the courts' refusal to countenance the statutory violation, there will be fewer, if any, such situations in the future." Thus, it is clear that, without a showing of good cause, this Court is without discretion to entertain even a meritorious, non-prejudicial motion for summary judgment (see Thompson v New York City Board of Education, ___ AD3d ___ [2d Dept, May 25, 2004]).

Claimant's perfunctory excuse for the failure to move for summary judgment within the time frame ordered by the Court does not establish good cause for the delay. Accordingly, the matter will proceed to trial as scheduled. Motion DENIED.

September 22, 2004
White Plains, New York

Judge of the Court of Claims

[1] After the return date for this application and without leave of the Court, claimant submitted a Reply Affirmation; the Court did not consider this untimely submission.