Orth v Calhoun School, Inc.
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Orth v Calhoun School, Inc. 2012 NY Slip Op 30195(U) January 26, 2012 Supreme Court, New York County Docket Number: 107896/2007 Judge: Shulman Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 113012012 [* 1] [* 2] FILED NEW YORK COUNTY CLERKS OFFICE This action stems from a work-related accident which plaintiff Peter Orth alleges caused him to suffer Injurles. At the time of the accident, plaintiff was working on a construction project located at defendant The Caihoun School, Inc. Defendant moves, pursuant to CPLR 321 1 and CPLR 3212, for an order granting summary judgment dismissing plaintiffs complaint. BACKGROUND AND FACTUAL ALLEGATIONS Plaintiff had been employed as a laborer at the construction site prior to and on June 7, 2004, the date of the accident. His duties included cleaning the job site, specifically, placing the debris into dumpsters and rolling the dumpsters down a ramp to the sidewalk for collection. On the date of plaintiffs accident, plaintiff claims that his coworker started rolling the dumpster down the ramp without plaintiff. Plaintiff then grabbed the dumpster to try to slow it down since the dumpster was getting out of control. Plaintiff allegedly injured his back as he was trying to slow down the dumpster and ultimately required surgery. [* 3] In June 2007, plaintiff filed a complaint against the defendant and plaintiffs employer alleging that they were negligent and violated multiple Labor Law provisions. The court has since dismissed the claims as against plaintiffs employer. On July 22, 2008, the court issued a preliminary conference order directing that [alny dispositive motion(s) shall be made on or before 60 days after NOI. Defendant s Exhibit H,at 2. Plaintiff filed his note of issue on July 14, 201 1. Defendant served Its motion for summary judgment on September 13, 201 1. Plaintiff argues that defendant s motion should be denled as untimely. In response, defendant contends that its motion is not untimely and was served within the 60-day period as set forth In the prellminary conference order. DISCUSSION CPLR 3212 (a) provides a8 follows: 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 mads no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown. It is undisputed that plaintiff filed a note of issue on July 14, 201 1. Pursuant to CPLR 3212 (a), the 60 days started to run after the note of issue was filed, making September 12, 201 1 the final date to s e w a motion for summary judgment. Defendant served its motion for summary judgment on September 13, 201 I, which is outside of the 60 day period indicated by the court. Defendant did not seek an extension of time to serve its motion, nor does it explain the reason for the delay. In response to plaintiffs objection regarding the motion s untimeliness, defendant states: -2- [* 4] In short, Plaintiffs argument that the motion is untimely is without merit. There is simply no question that Calhoun School served Its motion for summary judgment on Plaintiff within 60 days from the day Plaintiff his note of issue. Calhoun School s motion is timely and should be considered by this Court. (Emphasis in original) Clausen Affirmation in Reply, fi 13. It is well settled that [i]n the absence of such a good cause showing, the court has no discretion to entertain even a meritorious, nonprejudicial motion for summary judgment. John P. Krupski & Bros., lnc. v Town Bd. of Town of Southold, 54 AD3d 899, 901 (2d Dept 2008),citing Brill v City ofNew York, 2 NY3d 648, 652 (2004). Similar to the present situation, Noexcuse at all, or a perfunctory excuse, cannot be good cause. Brill v City of New York, 2 NY3d at 652. Moreover, even though defendant s motion was made within the 120-day period as set forth in CPLR 3212 (a), this court has no discretion to entertain nonprejudicial, meritorious post-note of issue motions made after a court-imposed deadline but within the statutory maximum 120-day period. Elasser v Abramovitz, 37 AD3d 194, 194 (let Dept 2007). As the Court of Appeals notes, court deadlines are to be taken seriously, Mlcell v State Farm Mut. Auto. Ins. Co., 3 NY3d 725,726 (2004) ( statutory time frames - like court-ordered time frames - are not options, they are requirements ...,I). Thus, even seemingly de minimis defaults, such as the one day delay here, cannot be overlooked absent the requisite showing of good cause. See Derby v Bitan, 89 AD3d 891 (2d Dept 201 l)(motion for summary judgment denied without consideration of the merits where served 121 days after the note of Issue was flled and defendant failed to seek leave of court and offer a reason for the delay). -3- [* 5] Defendant havlng failed to serve its motion within 60 days after the note of issue filing date or to provide an explanation for the delay, this court cannot consider the merits of its motion for summary judgment. Accordingly, it Is hereby ORDERED that defendant The Calhoun School, I n c h motion for summary judgment is denied in its entirety. The parties shall proceed to Mediation as previously scheduled. The foregoing constitutes this court's Decision and Order. Courtesy copies of this Decision and Order have been provided to counsel for the parties. Dated: New York, New York January 26,2012 JAN 30 2012 NEW YORK COUNW CLERKS OFFICE -4-
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