Garcia v Rosas

[*1] Garcia v Rosas 2011 NY Slip Op 50359(U) Decided on March 14, 2011 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 2011
Supreme Court, Kings County

Nancy Garcia and Evette Pizarro, Plaintiffs,

against

Rafael Rosas 3RD and Rafael Rosas, Jr., Defendants.



8204/08

 

Plaintiff for Nancy Garcia

Marder Eskesen & Nass, Esqs

NY, NY

Plaintiff for Evette Pizarro

Heriberto A Cabrera, Esq.

Brooklyn NY

Defendant

William B. Stock, Esq

Cheven Keely & Hatzis, Esqs.

NY NY

Arthur M. Schack, J.

Defendants RAFAEL ROSAS 3RD and RAFAEL ROSAS, JR. move, pursuant to CPLR Rule 3212, for leave to move late for summary judgment upon good cause shown and for [*2]summary judgment and dismissal of plaintiff EVETTE PIZARRO's complaint, claiming that plaintiff EVETTE PIZARRO did not suffer a "serious injury," pursuant to Insurance Law § 5102 (d). Defendants failed to demonstrate "good cause" to hear the instant late motion on its merits.

In the instant tort action, the note of issue was filed with the Kings County Clerk on August 27, 2010. Defendants made the instant summary judgment motion on December 29, 2010, 134 days post note of issue and failed to make any showing of good cause for leave of the Court for an extension of time to make the instant summary judgment motion more than 60 days beyond the August 27, 2010 filing of the note of issue.

Thus, the instant motion violates CPLR Rule 3212 (a) and Kings County Supreme Court Uniform Civil Term Rule C (6). 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 C (6), effective January 2, 2010 and derived from the prior Kings County Supreme Court Uniform Civil Term Rule 13, states:

Post Note of Issue Summary Judgment Motion: In cases where the

City of New York is a defendant and is represented by the Tort Division

of the Corporation counsel's office, summary judgement motions may

be made no later than 120 days after the filing of a Note of Issue. In all

other matters, including third party actions, motions for summary

judgment may be made no later than 60 days after the filing of a

Note of Issue. In both instances the above time limitations may only

be extended by the Court upon good cause shown. See CPLR

3212 (a). [Emphasis added].

Therefore, the instant summary judgment motion is denied. (See Riccardi v CVS Pharmacy, Inc., 60 AD3d838 [2d Dept 2009]; Finger v Saal, 56 AD3d 606 [2d Dept 2008]; Kennedy v Bae, 51 AD3d 980 [2d Dept 2008]; McNally v Beva Cab Corp., 45 AD3d 820 [2d Dept 2007]; Davidson v Brisman, 40 AD3d 574 [2d Dept 2007]; Giordano v CSC Holdings, Inc., 29 AD3d 948 [2d Dept 2006]; Bevilacqua v City of New York, 21 AD3d 340 [2d Dept 2005]; Milano v George, 17 AD3d 644 [2d Dept 2004]; First Union Auto Finance, Inc. v Donat, 16 AD3d 372 [2d Dept 2005]).

Defendants claim that the instant summary judgment should not be deemed "late" because there was discovery outstanding on August 27, 2010, when the note of issue and certificate of [*3]readiness were filed. Defendants allege that plaintiff PIZARRO did not appear for three Independent Medical Examinations (IME's) until after the filing of the note of issue. The IME reports show that she was examined by: Dr. Ravi Tikoo, a neurologist, on September 29, 2010; Dr. Robert J. Orlandi, an orthopedist, on October 12, 2010; and, Dr. Daniel S. Arick, an otolaryngologist, on November 3, 2010. Defendants' counsel alleges that his office did not receive Dr. Arick's report until December 20, 2010 and "[w]ile this motion may technically be untimely, it was made as promptly as possible once discovery was completed [¶ 3 of affirmation in support of motion]."

Defendants, in the instant action, knew when they were served with the August 27,

2010 note of issue and certificate of readiness that discovery was not completed. They should not have waited to move for summary judgment after the IME examinations, but should have moved within 20 days after service of the note of issue to vacate the note of issue. The Uniform Civil Rules for the Supreme Court, 22 NYCRR § 202.21 (e) clearly states:

Vacating note of issue. Within 20 days after service of a note

of issue and certificate of readiness, any party to the action or special

proceeding may move to vacate the note of issue, upon affidavit showing

in what respects the case is not ready for trial, and the court may vacate

the note of issue if it appears that a material fact in the certificate of

readiness is incorrect, or that the certificate of readiness fails to comply

with the requirements of this section in some material respect

"A note of issue should be vacated when it is based upon a certificate of readiness that contains erroneous facts, such as that discovery has been completed." (Drapaniotis v

36-08 33rd Street Corp., 288 AD2d 254 [2d Dept 2001]). (See Gaskin v Ilowitz, 69 AD3d 563 [2d Dept 2010]; Amoroso v City of New York, 66 AD3d 618 [2d Dept 2009];

Ferreira v Village of Kings Point, 56 AD3d 718 [2d Dept 2008]; Lynch v Vollono, 6 AD3d 505 [2d Dept 2004]; Gregory v Ford Motor Credit Co., 298 AD2d 496 [2d Dept 2002]).

"A trial court has discretion in determining whether to consider a motion for summary judgment made more than 120 days [60 days in Kings County] after the filing of a note of issue (see CPKR 3212 [a]; Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124, 129 [2000])." (Josen v G & S Realty 1, LLC, 68 AD3d 1061 [2d Dept 2009]). (See Demacopoulos v City of New York, 73 AD3d 842 [2d Dept 2010]).

The Court will not reward defendants for their failure to move, pursuant to 22 NYCRR § 202.21 (e), to vacate the note of issue and then wait to file a "late" motion for summary judgment. The instant motion is clearly "late." The Court, in its discretion, will not consider the instant motion for summary judgment.

Conclusion

The motion for summary judgment by defendants RAFAEL ROSAS 3RD and RAFAEL [*4]ROSAS, JR., pursuant to CPLR Rule 3212, is denied as "late" and defendants

RAFAEL ROSAS 3RD and RAFAEL ROSAS, JR. failed to demonstrate "good cause" to hear the motion on its merits.

This constitutes the Decision and Order of the Court.

ENTER

___________________________

HON. ARTHUR M. SCHACKJ. S. C.