Florczyc v Stahal

[*1] Florczyc v Stahal 2005 NY Slip Op 50028(U) Decided on January 3, 2005 Supreme Court, Kings County Schmidt, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 3, 2005
Supreme Court, Kings County

Wojciech Florczyc, Plaintiff,

against

Stanley Stahal, d/b/a/ Stahl Park Avenue Co., et al., Defendants.



25129/99

David I. Schmidt, J.

plaintiff moves, by order to show cause, for an order denying the pending summary judgment motion by third-party defendant Safeway Environmental Corporation (Safeway) on the ground that the subject motion is untimely.

Plaintiff was injured as a result of a construction workplace accident on May 19, 1999. On July 19, 1999, he commenced the instant action, alleging that defendants' negligence and violations of the Labor Law caused his injuries. On or about March 19, 2001, defendants commenced the instant third-party action, seeking indemnification. Discovery was [*2]conducted in both actions, and thereafter, on July 15, 2004, plaintiff filed a note of issue and certificate of readiness.

Thereafter, on September 21, 2004, Safeway filed a motion for summary judgment, which is pending before this court. Plaintiff responded on October 14, 2004, by filing the instant order to show cause. Plaintiff argues that the court cannot entertain Safeway's motion.

Initially, plaintiff alleges that the motion is untimely under Rule 13 of Kings County Supreme Court Uniform Civil Term Rules. Plaintiff further claims that, under the authority of Brill v City of New York (2 NY3d 648 [2004]), this court has no jurisdiction to entertain Safeway's untimely motion because Safeway has not demonstrated "good cause" for the late filing.

In opposition, Safeway claims that its summary judgment motion is timely because of allowances for note of issue service by mail. In the alternative, Safeway argues that it has the requisite "good cause" to file an untimely motion.

The court denies the instant motion. Plaintiff's argument that Brill precludes this court from entertaining the subject summary judgment motion is without merit. In Brill, the Court of Appeals interpreted the language of CPLR 3212 (a) and decided that "'good cause' in CPLR 3212 (a) requires a showing of good cause for the delay in making the motion a satisfactory explanation for the untimeliness rather than simply permitting meritorious, non-prejudicial filings, however tardy" (Brill v City of New York, 2 NY3d 648, 652 [2004]). In Brill, the subject motion for summary judgment was filed almost a year after the note of issue was filed well beyond the 120-day limit proscribed by CPLR 3212 (a).

In contrast, the Court of Appeals in Brill did not opine on the discretion of the trial courts to establish a date earlier than the 120-day limit proscribed by CPLR 3212 (a). In this case, 120 days from July 15, 2004 the date the instant note of issue was filed would have been November 12, 2004. Safeway's motion for summary judgment was filed on September 21, 2004 well before the 120-day period proscribed by CPLR 3212 (a). Accordingly, the decision in Brill does not apply here.[FN1] As the court notes no reason why it should not entertain Safeway's motion for summary judgment, the instant motion by plaintiff is denied.

This constitutes the decision and order of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1: The court declines to opine on whether Safeway has shown "good cause" for the negligible delay.