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.
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 ), 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 ; 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
As noted, the motion is denied.