New York State Court of Claims

New York State Court of Claims
NUNEZ v. THE STATE OF NEW YORK, # 2009-029-072, Claim No. 113342, Motion No. M-77521


Court finds good cause for claimant's failure to meet court-imposed deadline for making summary judgment motions and grants claimant permission to submit such a motion.

Case information

UID: 2009-029-072
Claimant short name: NUNEZ
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 113342
Motion number(s): M-77521
Cross-motion number(s):
Claimant's attorney: FRIEDMAN, LEVY, GOLDFARB & GREEN, P.C.
By: Charles E. Green, Esq.
By: Dennis J. Pak, Esq.
Third-party defendant's attorney:
Signature date: January 6, 2010
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


Claimants move for an order extending their time to move for summary judgment. Defendant opposes the motion.

The underlying claim alleges that Fernando Nunez was injured when he fell from a roof while working as an employee of a State contractor at Beacon Correctional Facility. Violations of Labor Law sections 200, 240(1) and 241(6) are alleged. The claim was timely filed on February 20, 2007.

The preliminary conference order dated October 9, 2007 provides that all motions for summary judgment be made within 45 days after filing of the note of issue, which occurred on September 14, 2009. Claimants' counsel advises that he realized on November 6, 2009 that the 45-day period had expired eight days earlier. He immediately contacted the court and was advised that if defendant would not stipulate, a motion for an extension would be required. The instant motion ensued.

Counsel explains claimants' failure to comply with the 45-day deadline as follows: The dates contained in the preliminary conference order were adjourned a number of times, at conferences before the court and by stipulation, with the final stipulation providing that the note of issue was due September 15, 2009. Counsel advises that the firm he was previously associated with merged on September 1, 2009 into a new firm and calendar dates from the old firm's cases were entered into the new firm's calendaring system. Since the final stipulation extending the preparation deadline to September 15, 2009 did not mention a deadline for summary judgment motions, the deadline was entered as January 12, 2010, 120 days after filing (the default period pursuant to CPLR 3212[a]), rather than October 29, 2009, 45 days after filing, as per the preliminary conference order. As noted, upon realizing that the deadline had passed, on November 6, 2009, claimants wrote to the court and requested permission to make the summary judgment motion.

CPLR 3212(a) provides that the court may set a date after which no motion for summary judgment will be entertained, no sooner than 30 days after filing of the note of issue, and that if no such date is set by the court, the motion shall be made no later than 120 days after filing, "except with leave of court on good cause shown."

Defendant's opposition to the motion is based on the decision in Brill v City of New York (2 NY3d 648 [2004]), in which the Court of Appeals reversed an order granting summary judgment because it had been made after the expiration of the 120-day deadline with no explanation for the delay. Discussing the statutory "good cause" requirement, the Court noted that some courts had required a satisfactory explanation for the movant's delay while others found the requirement to be satisfied where the motion had merit and there was no prejudice to the adversary. The Court adopted the former approach, holding that good cause "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 so holding, the Court noted that "[e]leventh-hour summary judgment[s] [were] sometimes used as a dilatory tactic, left inadequate time for reply or proper court consideration, and prejudiced litigants who had already devoted substantial resources to readying themselves for trial" (id. at 651).

Defendant also maintains that "law office failure" can never constitute "good cause" as required by the statute and by the Brill decision. However, the decisions cited in support of this proposition do not support the absolute prohibition advanced by defendant. For example, in Breiding v Giladi (15 AD3d 435 [2005]), the Second Department held that "defendants' perfunctory claims of unspecified clerical inadvertence and reassignment of counsel were insufficient to constitute good cause for the delay" (see also Baldessari v Caines, 61 AD3d 904 [2009]). Here, claimants' specific explanation for the delay was neither perfunctory nor unspecified.

The court also notes that the concerns recited in the Brill decision are not implicated here. This is not an "eleventh-hour" motion used as a dilatory tactic and, since claimants on this motion merely request permission to move for summary judgment and did not submit an actual motion seeking summary judgment, defendant will have adequate time to respond should this motion be granted. Most significant, defendant has not even alleged any prejudice resulting from claimants' delay and, since trial has been scheduled for June 8, 2010, the issue of a party having expended resources for a trial that may not occur is not present.

Based on all of the foregoing circumstances - counsel's explanation for the delay, the short duration of the delay, the fact that summary judgment may well dispose of the liability portion of the case given that it involves Labor Law 240(1) and a fall from a roof and the fact that the trial is scheduled for more than five months from this writing - the court concludes that claimants have demonstrated good cause for the requested relief and that such relief does not contravene the concerns expressed by the Court of Appeals in Brill, supra.

Additionally, although claimants did not request such relief, the court notes that since it is still less than 120 days from the filing of the note of issue and the deadline missed by claimants was imposed by order of the court, not by statute, it would be within the power of the court to modify its prior order to extend the 45-day period (CPLR 2004, 2221(a), 2005).

Accordingly, the motion is granted. Claimants may submit a motion for summary judgment on the issue of liability, the motion to be made returnable February 10, 2010. Service of the motion and all response papers shall be in accordance with the timing provision of the CPLR.

January 6, 2010

White Plains, New York


Judge of the Court of Claims

Papers submitted:

Notice of Motion, Affirmation and Exhibits

Affirmation in Opposition

Reply Affirmation