Rivera v City of New York

Rivera v City of New York 2010 NY Slip Op 03773 [73 AD3d 413] May 4, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 30, 2010

Juana Rivera, Appellant,
v
City of New York, Respondent.

—[*1] Helen F. Dalton & Associates, P.C., Forest Hills (Roman Avshalumov of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Marta Ross of counsel), for respondent.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered March 13, 2009, which, in an action for personal injuries, insofar as appealed from as limited by the briefs, granted defendant's cross motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, defendant's cross motion denied, and the matter remanded for further proceedings.

Defendant's cross motion for summary judgment, which was made in response to a motion by plaintiff characterized by the motion court as one to restore the action to the calendar, should have been denied as untimely, as defendant failed to show good cause for making the cross motion more than 120 days after the filing of the note of issue (CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648, 652 [2004]). At least where, as here, the 120-day time limit had expired before the case was struck from the calendar, we reject defendant's argument that the 120-day limit does not apply to cases that have been struck from the calendar. We note Brill's express prohibition against consideration of unexcused, untimely motions no matter how meritorious or nonprejudicial (id. at 653, especially n 4; see Perini Corp. v City of New York, 16 AD3d 37, 39-40 [2005]). Concur—Gonzalez, P.J., Tom, Renwick, DeGrasse and Abdus-Salaam, JJ.