Coello v Christakos

[*1] Coello v Christakos 2009 NY Slip Op 51033(U) [23 Misc 3d 142(A)] Decided on May 22, 2009 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 22, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., GOLIA and RIOS, JJ
2008-933 Q C.

Fernando R. Coello, Respondent,

against

Paul G. Christakos and Gialos Corp. DBA, Appellants.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered March 10, 2008. The order denied as untimely defendants' motion for summary judgment dismissing the complaint.

Order reversed without costs and matter remitted to the Civil Court for determination de novo of defendants' motion for summary judgment dismissing the complaint in accordance with the decision herein.

Plaintiff commenced this action in the Supreme Court, Queens County, to recover for serious injuries allegedly sustained in a motor vehicle accident. During the
course of motion practice, the Supreme Court granted leave to defendants to move for summary judgment pursuant to the terms of a written stipulation between the parties, which fixed the deadline for making the motion at 45 days following the date of said
stipulation. The matter then was transferred, pursuant to CPLR 325 (d), to the Civil Court, Queens County, where, approximately 77 days after the date of the stipulation, defendants filed a motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The Civil Court denied the motion as untimely, without reaching the merits of the case, and the instant appeal by defendants ensued.

Upon the record presented, we find that defendants established the requisite "good cause" for their delay in making their motion (see CPLR 3212 [a]; Ramos v Triboro Coach Corp., 31 AD3d 625 [2006]; Andaloro v Hidden Ponds Dev. Corp., 273 AD2d 185 [2000]; Aurora v Ford [*2]Motor Credit Corp., 266 AD2d 418 [1999]). We also note that plaintiff failed to demonstrate any prejudice arising from the delay. Consequently, it was an improvident exercise of discretion for the Civil Court to deny defendant's motion as untimely. Accordingly, the Civil Court's order is reversed and the matter is remitted to the Civil Court for a determination de novo of defendants' motion for summary judgment.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: May 22, 2009