Brown v City of New York

[*1] Brown v City of New York 2005 NY Slip Op 50093(U) Decided on January 12, 2005 Supreme Court, Bronx County Renwick, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2005
Supreme Court, Bronx County

BERNICE BROWN, Plaintiff

against

THE CITY OF NEW YORK, NEW YORK CITY TRANSIT AUTHORITY, and OUTDOOR SYSTEMS, Defendants.



20673/2001

Dianne T. Renwick, J.

Plaintiff Bernice Brown commenced this action seeking to recover money damages for personal injuries sustained during a slip and fall on a public roadway. Besides suing the City of New York, plaintiff sues the New York City Transit Authority (hereinafter referred to as "NYCTA"), the owner of the property abutting the street where the slip and fall took place, and Outdoor Systems, the company hired by The City of New York to repair the subject street. All defendants now move for an order, pursuant to CPLR 3212, granting them summary judgment dismissing the claims asserted against them as devoid of merit.

Discussion

Section 3212 of the CPLR states that a motion for summary judgment "shall be made no later than 120 days after the filing of the Note of Issue, except with leave of the Court on good cause shown." In this case, plaintiff filed the Note of Issue on July 19, 2003. However, none of the motions for summary judgment has been filed within the 120-day period after the filing of the Note of Issue. For instance, the motion by defendant NYCTA is five months late, having been filed on March 12, 2004. The cross motions by defendant The City of New York and defendant Outdoor Service are both about 10 months late, having been filed, respectively, on [*2]August 19, 2004 and August 20, 2004.

Subsequent to the submission of the initial motion, the Court of Appeals decided Brill v. City of New York, 2 N.Y. 3rd 648 (2004). Brill held that absent "good cause," courts do not have the discretion to decide an untimely motion for summary judgment. Moreover, the Court of Appeals addressed what constitutes "good cause" and held that the movant must offer an excuse for the delay or untimeliness of the motion, regardless of the merits of the motion and the lack of prejudice to the other parties. See also Thompson v. New York City Bd. of Educ., __A.D.3rd __, 781 NYS2d 617 (2nd Dept. 2004). In narrowing a court's discretion to entertain a belated dispositive motion, by giving a very narrow meaning to the term "good cause," the Court of Appeals expressed its abhorrence of the sloppy practice of "ignoring court-ordered legislative mandates." Brill v. City of New York, 2 N.Y. 3rd 648, 649 (2004).

Here, none of the movants has demonstrated good cause for their belated service of their respective motions beyond the 120-day period after the filing of the Note of Issue. For instance, neither defendant The City of New York nor defendant Outdoor Service offers any excuse for its failure to timely move for summary judgment. Instead, they both argue that this Court should entertain their respective motion for summary judgment in light of the fact that the motions are "meritorious" and plaintiff has not been prejudiced by the delay. In Brill, however, the Court of Appeals held that in the absence of a "good cause" showing for the delay, the courts have no discretion to entertain even a meritorious, non-prejudicial motion for summary judgment. Cf Gibbs v. McRide Cab Co., __ AD2d __, 781 NYS2d 747 (2nd Dept. 2004) (Court improvidently exercised its discretion in addressing motion for summary judgment filed six months since the absence of prejudice to the plaintiff did not constitute good cause for the delay).

The only moving defendant that has offered a putative excuse for its delay or untimeliness of the motion for summary judgment is defendant NYCTA. This Court finds, however, that defendant NYCTA's excuse did not constitute a "good excuse" for the delay. The excuse offered by defendant NYCTA is that the delay in making the motion was due "to plaintiff's on going investigation" and that the examination before trial of defendant The City of New York did not take place until December 15, 2003, about four months after the Note of Issue was filed. While the need for relevant post-Note of Issue discovery may well be a valid excuse for a late motion for summary judgment, an excuse of outstanding discovery, like a deposition, is a legitimate excuse only where the evidence forming the basis for the motion for summary judgment was acquired during the post-Note of Issue discovery. See e.g., Gonzalez v. 98 Mag Leasing Corp., 95 NY2d 124, 129 (2000); Kunz v. Gleeson, 9 A.D.3rd 480 (2nd Dept. 2004); Luciano v. Apple Maintenance & Servs., 289 AD2d 90 (1st Dept. 2001); Jerry v. New York City Hous. Auth., 285 AD2d 531 (1st 2001); cf. Brill v. City of New York, 2 NY3d 648 (2004). For instance, in Kunz v. Gleeson, 9 A.D.3rd 480 (2nd Dept. 2004), the excuse of outstanding post-Note of Issue discovery was found to be a legitimate excuse. In Kuntz, supra , the defendant moved for summary judgment on the "threshold question" that the plaintiff did not sustain a "serious injury" as defined by Insurance Law §5102. The Appellate Division held that the Supreme Court providently exercised its discretion in entertaining the defendant's motion for summary judgment. The motion was made about two weeks beyond the deadline fixed by the court. In the Court's view, the defendant demonstrated good cause for her slight delay by explaining that the independent medical examinations of the plaintiff were not conducted until [*3]after the Note of Issue had been filed, and that the results of these examinations provided the evidentiary basis for her motion for summary judgment. See also, Gonzalez v. 98 Mag Leasing Corp., 95 NY2d 124, 129 (2000); Luciano v Apple Maintenance & Servs., 289 AD2d 90 (1st Dept. 2001); Jerry v. New York City Hous. Auth., 285 AD2d 531 (2nd Dept. 2001); cf. Brill v. City of New York, 2 NY3d 648 (2004). In this case, however, the excuse of post-Note of Issue discovery has no connection whatsoever to the merits of the motion for summary judgment. Defendant NYCTA has moved for summary judgment on the ground that plaintiff's fall occurred on a public street, which it has no duty to maintain. However, the alleged outstanding discovery, the deposition of defendant The City of New York, sheds no light on this issue. Instead, the factual basis for the motion was discovered very early in the discovery process. As detailed by counsel for defendant NYCTA in his affirmation in support of the motion, such information was revealed by plaintiff during the 50-H hearing on October 12, 2000, which was several years before plaintiff filed the Note of Issue. Thus, no claim can be made that the motion was belatedly filed because of facts that emerged or were discovered subsequent to the passage of the deadline.

Conclusion

While this court is cognizant of the fact that each defendant's dispositive motion for summary judgment may be meritorious, the Court lacks the discretion to entertain any of the untimely motions inasmuch as none of the defendants has complied with the requirements of CPLR §3212 of proffering a "good cause" showing for the delay in making the motion. Defendants, however, have nobody but themselves to blame for their predicament of having to wait, until after plaintiff presents her case at trial, to move to have their case dismissed. "The present scenario" is "another example of sloppy practice threatening the integrity of our judicial system." Brill v. City of New York, 2 N.Y. 3rd 648, 649 (2004). Accordingly, pursuant to CPLR §3212(a), there being no showing of "good cause," the motion and cross motions, seeking summary judgment dismissing the

action, are denied as untimely made.

This constitutes the Decision and Order of this Court.

Dated: January 12, 2005 __________________________

Bronx, New York Hon. Dianne T. Renwick, JSC