New York State Court of Claims

New York State Court of Claims

JACOBELLIS v. THE NEW YORK STATE THRUWAY AUTHORITY, #2007-029-011, Claim No. 108139, Motion No. M-72967


Court lacks discretion to consider untimely summary judgment motion absent a demonstration of good cause for the failure to make a timely motion.

Case Information

PATRICIA JACOBELLIS, as Administrator of the Estate of RICHARD L. JACOBELLIS, deceased.
1 1.The court has amended the caption to conform to the terms of a stipulation filed on January 23, 2006.2 2.The court has corrected the caption to properly reflect the defendant.
Claimant short name:
Footnote (claimant name) :
The court has amended the caption to conform to the terms of a stipulation filed on January 23, 2006.
Footnote (defendant name) :
The court has corrected the caption to properly reflect the defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Claimant’s attorney:
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Barry Kaufman, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 19, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


This is claimant’s motion for summary judgment, which is opposed by defendant on two grounds: (1) that the motion is untimely, and (2) that claimant has not demonstrated the absence of relevant factual issues. [3] Defendant is correct on both counts and the motion must be denied.

The claim, which arises out of a June 1, 2001 collision involving claimant’s vehicle and a vehicle owned by defendant and operated by an employee of defendant, was filed on August 13, 2003. On November 21, 2003, the court issued a preliminary conference order entered into between the parties providing that claimant would file a note of issue no later than December 15, 2004 and further providing that all summary judgment motions would be made within 60 days of filing of the note of issue. Claimant’s note of issue deadline was extended by stipulation and a note of issue was eventually filed by claimant on April 14, 2006. Two weeks later, claimant was notified that the claim was scheduled for trial on May 15, 2007.

The instant motion was made February 14, 2007 and filed with the court February 16, 2007. Claimant seeks an order “granting partial summary judgment in favor of the claimant regarding the issue of liability and fault . . . either 100% against the [defendant], or such lesser amount the Court deems appropriate, but not less than 80% against the [defendant]” (Notice of Motion).

Pursuant to CPLR 3212(a), a motion for summary judgment must be made no later than 120 days following service of the note of issue (or a different deadline, if set by the court), “except with leave of court on good cause shown.” Claimant notes that her motion was made after the expiration of the statutory period, and alleges that the court nevertheless has the “discretion” to decide the motion on its merits and submits that the court should exercise its discretion in this regard to “avoid costs of trial as to negligence and fault and to promote judicial economy” (Reither Affirmation, ¶ 14).

Claimant’s position as to the discretion of the court under these circumstances was rejected by the Court of Appeals in Brill v City of New York (2 NY3d 648 [2004]), with the court concluding that the “good cause”referred to in the statute “requires a showing of good cause for the delay in making the motion – a satisfactory explanation for the untimeliness – rather than simply permitting meritorious, nonprejudicial filings, however tardy” (id., at 652). In the absence of such a showing, the court lacks the discretion to consider the motion. Indeed, to do so would constitute reversible error (Miceli v State Farm Mutual Ins. Co., 3 NY3d 725 [2004]; First Union Auto Finance v Donat, 16 AD3d 372 [2d Dept 2005]).

Counsel does not even attempt to address the sole relevant question, which is why, after filing the note of issue, being notified of the trial date two weeks after such filing, he did nothing for ten months and then submitted a motion, returnable two months prior to trial, that just as easily could have been submitted within the statutory time frame. The court finds no good cause for the delay and denies the motion for that reason.

Additionally, were the court to address the merits of the motion, it would be denied in any event due to the existence of relevant factual issues centering around the negligence of the two drivers involved in the subject collision. The purpose of summary judgment is to identify those cases where there are no issues of fact, not to do what claimant suggests here which is essentially to conduct a paper trial based on accident reports, deposition transcripts and the like and to assign fault to the drivers, with “not less than 80%” assigned to defendant. As defendant notes, the question of liability herein requires resolution of many factual issues with respect to the actions of both drivers. This is a prototypical example of a case where summary judgment is inappropriate.

As noted, the motion is denied.

March 19, 2007
White Plains, New York

Judge of the Court of Claims

[3].The court considered the Notice of Motion, Affirmation and Exhibits and the Affirmation in Opposition and Exhibits.