Navarro v. Damac Realty, LLC

202 A.D.3d 1100

159 N.Y.S.3d 887 (Mem)

Luis F. NAVARRO, appellant,

v.DAMAC REALTY, LLC, respondent.

2019–09249

Index No. 712882/16

Supreme Court, Appellate Division, Second Department, New York.

Argued—December 9, 2021

February 23, 2022

Omrani & Taub, P.C., New York, NY (James L. Forde of counsel), for appellant.

Gold Benes, LLP, Bellmore, NY (Jeffrey B. Gold, Karen C. Higgins, Roseann Madonna, Keith Lederman, and James F. Stewart of counsel), for respondent.

MARK C. DILLON, J.P., VALERIE BRATHWAITE NELSON, REINALDO E. RIVERA, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Salvatore J. Modica, J.), entered June 16, 2019. The order granted the defendant's motion for leave to extend the time to move for summary judgment, and thereupon, for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, that branch of the defendant's motion which was for leave to extend the time to move for summary judgment is denied, and that branch of the defendant's motion which was for summary judgment dismissing the complaint is denied as academic.

On March 1, 2015, the plaintiff allegedly was injured when he slipped and fell on ice covered by snow on a sidewalk abutting the defendant's property. In October 2016, the plaintiff commenced this action to recover damages for personal injuries. On August 8, 2018, the plaintiff filed the note of issue. On March 13, 2019, more than 120 days after the filing of the note of issue, the defendant moved for leave to extend the time to move for summary judgment, and thereupon, for summary judgment dismissing the complaint. In an order entered July 16, 2019, the Supreme Court granted the defendant's motion. The plaintiff appeals.

Pursuant to CPLR 3212(a), unless the court directs otherwise, a motion for summary judgment "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" (see Brill v. City of New York, 2 N.Y.3d 648, 651, 781 N.Y.S.2d 261, 814 N.E.2d 431 ; Lanza v. M–A–C Home Design & Constr. Corp., 188 A.D.3d 855, 856, 135 N.Y.S.3d 495 ). Absent a "satisfactory explanation for the untimeliness," constituting good cause for the delay, an untimely summary judgment motion must be denied without consideration of the merits ( Brill v. City of New York, 2 N.Y.3d at 652, 781 N.Y.S.2d 261, 814 N.E.2d 431 ; see Dojce v. 1302 Realty Co., LLC, 199 A.D.3d 647, 649, 157 N.Y.S.3d 478 ).

Here, in support of its motion, the defendant submitted, inter alia, an affidavit from a paralegal for the law firm representing the defendant, who averred that the defendant's failure to file a timely motion for summary judgment was attributable to difficulties in locating a principal of the defendant to appear for a deposition. While "[s]ignificant outstanding discovery may, in certain circumstances, constitute good cause for a delay in making a motion for summary judgment" ( Avezbakiyev v. City of New York, 104 A.D.3d 888, 960 N.Y.S.2d 910 ; see Gonzalez v. 98 Mag Leasing Corp., 95 N.Y.2d 124, 711 N.Y.S.2d 131, 733 N.E.2d 203 ), here, the defendant failed to establish that the testimony of a principal of the defendant was essential to its motion for summary judgment (...