April Thompson v New York City Board of Education

Thompson v New York City Bd. of Educ. 2004 NY Slip Op 06527 [10 AD3d 650] September 13, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, November 10, 2004

April Thompson, Appellant,
v
New York City Board of Education, Respondent.

—[*1]

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Bruno, J.), dated July 11, 2003, which, inter alia, granted the defendant's motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law and as a matter of discretion, with costs, the motion is denied, and the complaint is reinstated.

The Supreme Court improvidently exercised its discretion in considering the defendant's untimely motion for summary judgment in view of the defendant's failure to offer a satisfactory explanation for not serving the motion within 120 days of the filing of the note of issue as required by CPLR 3212 (a) (see Brill v City of New York, 2 NY3d 648 [2004]). In the absence of such a "good cause" showing, the court has no discretion to entertain even a meritorious, nonprejudicial motion for summary judgment (id.). Thus, the motion should have been denied, "and the case returned to the trial calendar, where a motion to dismiss after plaintiff rests or a request for a directed verdict may dispose of the case during trial" (id. at 653). Altman, J.P., Smith, Krausman and Skelos, JJ., concur.