Madison Third Bldg. Cos., LLC v Berkey

Madison Third Bldg. Cos., LLC v Berkey 2009 NY Slip Op 05686 [64 AD3d 457] July 7, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 2, 2009

Madison Third Building Companies, LLC, Respondent,
v
David Berkey et al., Appellants.

—[*1] Zeichner Ellman & Krause LLP, New York (Stephen F. Ellman of counsel), for appellants.

Itkowitz & Harwood, New York (Donald Harwood of counsel), for respondent.

Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered July 17, 2008, which denied defendants' motion for summary judgment dismissing the complaint as untimely, unanimously reversed, on the law and the facts, without costs, and the matter remanded to Supreme Court to decide defendants' motion on its merits.

Inasmuch as defendants' attorney reasonably interpreted a court attorney's oral directive at a post-note of issue conference that summary judgment motions "be made in accordance with the CPLR," to mean that the time to make a summary judgment motion had been extended from the 45 day deadline set in two pre-note of issue conference orders to the 120-day outer limit permitted by CPLR 3212 (a), such excuse was reasonable under the circumstances and the motion should have been considered on its merits.

Motion seeking a stay of trial pending appeal dismissed, as moot. Concur—Andrias, J.P., Saxe, Acosta and Renwick, JJ. [See 2008 NY Slip Op 32007(U).]