New York State Court of Claims

New York State Court of Claims

KRUEGER v. THE STATE OF NEW YORK, #2009-030-558, Claim No. 114287, Motion No. CM-76871


Synopsis


Untimely cross-motion by defendant for summary judgment denied in subrogation claim. Timely filed motion for summary judgment withdrawn by claimant, thus underlying rationale for considering untimely motion - however meritorious - not present; no showing by defendant of good cause for the delay.

Case Information

UID:
2009-030-558
Claimant(s):
NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY a/s/o FRED KRUEGER and ELAINE KRUEGER
Claimant short name:
KRUEGER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114287
Motion number(s):
CM-76871
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
BOEGGEMAN, GEORGE & CORDE, P.C.BY: SONIA R. GRIFFIN, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: WANDA PEREZ-MALDONADO, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
September 28, 2009
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on defendant’s cross-motion[1] for


summary judgment [CM-76871] originally marked for submission on August 19, 2009:

1,2 Notice of Cross-Motion for Summary Judgment (filed June 25, 2009); Affirmation in Support of Defendant’s Cross-Motion for Summary Judgment by Wanda Perez-Maldonado, Assistant Attorney General and attached exhibits

  1. Affirmation in Opposition by Sonia R. Griffin, Attorney for Claimant (filed August 14, 2009) and attached exhibits
  1. Reply Affirmation in Further Support of Defendant’s Cross-Motion for Summary Judgment by Wanda Perez-Maldonado (filed August 18, 2009)
This subrogation claim relates to an automobile accident occurring on January 28, 2007 at approximately 12:15 p.m. on Haviland Hollow Road in the Town of Patterson, New York. At that time, a state trooper vehicle driven by Trooper Rachel A. Longmaid collided with the vehicle driven by Fred T. Krueger, which was owned by Elaine Krueger, a passenger. The claim filed herein names as defendants the State of New York, the New York State Police, and Rachel A. Longmaid.

After issue was joined by service of an answer, the parties entered into a preliminary conference order [PCO] that was so ordered by the Court on January 16, 2008. The PCO provides that all motions for summary judgment be made[2] within forty-five (45) days after filing the note of issue and certificate of readiness. A note of issue and certificate of readiness was filed herein on April 23, 2009. The deadline to file a motion for summary judgment was June 7, 2009. Claimant served a motion for summary judgment on May 28, 2009, originally returnable July 1, 2009 which has since been withdrawn by letter dated July 31, 2009. Defendant filed the present cross-motion for summary judgment - which is concededly untimely under the PCO - on June 25, 2009 (before claimant’s original motion was withdrawn). The cross-motion was marked for submission on August 19, 2009.

While generally an untimely filed dispository motion is not considered no matter how meritorious unless good cause for the untimeliness is established [see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 (2004); Brill v City of New York, 2 NY3d 648 (2004)], courts have allowed consideration of a cross-motion filed after either the statutory [Civil Practice Law and Rules §3212(a)] or court mandated period has expired when a timely filed motion for summary judgment seeks relief “nearly identical” [Bressingham v Jamaica Hosp. Med. Ctr., 17 AD3d 496, 497 (2d Dept 2005)] to that sought in the cross-motion. Joyner-Pack v Sykes, 54 AD3d 727; Ellman v Village of Rhinebeck, 41 AD3d 635 (2d Dept 2007), lv denied 9 NY3d 812 (2007); Grande v Peteroy, 39 AD3d 590 (2d Dept 2007). Part of the rationale for allowing consideration of the untimely motion is that the court would be searching the record with regard to the timely summary judgment motion in any event, and that such perusal, as well as the ability to award summary judgment to a nonmoving party, is inherent under the statute. See Civil Practice Law and Rules §3212(b); see also Grande v Peteroy, supra at 592. This is, however, a narrowly drawn exception to the concerns raised by the Court of Appeals in Miceli v State Farm Mut. Auto. Ins. Co., supra, and Brill v City of New York, supra.

Here, where the timely filed motion for summary judgment has been withdrawn, and no argument as to good cause for the delay in filing a cross-motion has been advanced by defendant, however meritorious the cross-motion may be it is nonetheless untimely under the Court’s PCO, and the pertinent case law.

Based on the foregoing, defendant’s cross-motion is denied.

September 28, 2009
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]. The claimant’s motion for summary judgment [M-76755] was withdrawn by letter dated July 31, 2009. Thereafter, attempts to enter into a Stipulation Discontinuing the Action were not effectuated between the parties.
[2].A motion is “made, when a notice of motion . . . is served.” Civil Practice Law and Rules §2211; see Rivera v Glen Oaks Village Owners, Inc., 29 AD3d 560, 561 (2d Dept 2006) lv denied 9 NY3d 817 (2008); see also Jenkins v State of New York, 119 Misc2d 144, 145 (Ct Cl 1983).