Utica Mut. Ins. Co. v Brooklyn Navy Yard Dev. Corp.

[*1] Utica Mut. Ins. Co. v Brooklyn Navy Yard Dev. Corp. 2009 NY Slip Op 50514(U) [22 Misc 3d 1139(A)] Decided on March 27, 2009 Supreme Court, Kings County Schack, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 27, 2009
Supreme Court, Kings County

Utica Mutual Insurance Company a/s/o Ares Printing & Packaging Corp., Plaintiffs,

against

Brooklyn Navy Yard Development Corp., The City of New York and Metropolitan Artificial, Defendants.



11082/04



Appearances:

Plaintiff

Faust Goest LLP

NY NY

Defendant

Cartafalsa Slattery

NY NY

Defendant

Ryan & Conlon - Def Metropolitan

NY NY

Arthur M. Schack, J.

The motion of defendants BROOKLYN NAVY YARD DEVELOPMENT CORP. (BNYDC) and THE CITY OF NEW YORK (NYC) for summary judgment and dismissal of plaintiffs' complaint, pursuant to CPLR Rule 3212(a), is denied as untimely, for violation of CPLR Rule 3212 (a) and Kings County Supreme Court Uniform Civil Term Rule 13 and failing to demonstrate "good cause" for defendants BNYDC and NYC delay in making the instant [*2]motion.

In this insurance subrogation action, the Appellate Division, Second Department, in its June 24, 2008 decision and order, 52 AD3d 821, reversed my October 13, 2006 granting of summary judgment to defendants BNYDC and NYC, based upon the anti-subrogation doctrine. A certified copy of the Appellate Division's decision and order, with notice of entry and an affidavit of service was filed with the Kings County Clerk's Office on July 3, 2008. Defendants BNYDC and NYC allege, in ¶ 12 of their affirmation in support of the instant motion, that "the case was recently restored'" and, in ¶ 13, that "since the filing of the Note of Issue, the case, briefly stated, was dismissed and thereafter the dismissal reversed on appeal. Hence, defendants ask this Court to agree that showing of good cause is clearly established under CPLR § [sic - should be Rule'] 3212 (a), to consider and render a decision on the instant motion." The instant motion of defendants BNYDC and NYC for summary judgment is based upon the theory that plaintiff failed to

demonstrate any negligence by BNYDC and NYC.

CPLR Rule 3212 (a) states:

Time; kind of action. Any party may move for summary

judgment in any action, after issue has been joined; provided however,

that the court may set a date after which no such motion may be made,

such date being no earlier than thirty days after the filing of the note of

issue. If no such date is set by the court, such motion shall be made no

later than one hundred twenty days after the filing of the note of issue,

except with leave of court on good cause shown. [Emphasis added]

Kings County Supreme Court Uniform Civil Term Rule 13 states, "Post Note of Issue Summary Judgment Motions: No motion for summary judgment may be made more than 60 days after filing a Note of Issue, except with leave of Court on good cause shown. See CPLR 3212 (a)." [Emphasis added].

In the instant tort action, the Note of Issue was filed with the Kings County Clerk's Office on May 16, 2006. My October 13, 2006 summary judgment decision and order, granting summary judgment and dismissal of the action to defendants BNYDC and NYC and the subsequent appellate proceedings, precluded defendants BNYDC and NYC from moving for summary judgment on any alternative theories. With respect to the instant summary judgment motion, the Court deems July 3, 2008, the day that the certified copy of the Appellate Division's decision and order reversing my previous granting of summary judgment to defendant BNYDC and NYC, with notice of entry and an affidavit of service, was filed with Kings County Clerk's Office to be the functional equivalent of the note of issue date for the filing of the instant summary judgment motion. (McNally v Beva Cab Corp., 45 AD3d 820 [2d Dept 2007]). Sixty days post July 3, 2008 was September 1, 2008. However, defendants BNYDC and NYC made the instant motion on November 14, 2008, 134 days after the certified copy of the Appellate Division's decision and order, with notice of entry and an affidavit of service, was filed with Kings County Clerk's Office. [*3]

If defendants BNYDC and NYC demonstrate "good cause" for their delay, the Court in its discretion may grant an extension of time to make the instant summary judgment motion, upon the alternate theory that they were not negligent. (See Brill v City of New York, 2 NY3d 648, 652 [2004]; First Union Auto Finance, Inc. v Donat, 16 AD3d 372 [2d Dept 2005]; Bevilacqua v City of New York, 21 AD3d 340 [2d Dept 2005]; Giordano v CSC Holdings, Inc., 29 AD3d 948 [2d Dept 2006]; Davidson v Brisman, 40 AD3d 574 [2d Dept 2007]; McNally v Beva Cab Corp., 45 AD3d 820 [2d Dept 2007]; Kennedy v Bae, 51 AD3d 980 [2d Dept 2008]; Finger v Saal, 56 AD3d 606 [2d Dept 2008]).

Defendants BNYDC and NYC assert that their "good cause" for making the instant motion is the reversal and restoration of the case by the Appellate Division. However, the moving defendants fail to explain why they waited 134 days subsequent to the equivalent note of issue date to make the instant motion. Defendants BNYDC and NYC fail to demonstrate "good cause" for their untimely summary judgment motion. Their instant motion for summary judgment is denied.

Conclusion

Accordingly, it is

ORDERED that the motion of defendants BROOKLYN NAVY YARD DEVELOPMENT CORP. and THE CITY OF NEW YORK for summary judgment and dismissal of plaintiffs' complaint, pursuant to CPLR Rule 3212 (a), is denied as untimely, for violation of CPLR Rule 3212 (a) and Kings County Supreme Court Uniform Civil Term Rule 13, and the failure of defendants BROOKLYN NAVY YARD DEVELOPMENT CORP. and THE CITY OF NEW YORK to demonstrate "good cause" for their delay in making the instant summary judgment motion.

This constitutes the Decision and Order of the Court.

ENTER

___________________________

HON. ARTHUR M. SCHACKJ. S. C.