Bissell v New York State Dept. of Transp.

Bissell v New York State Dept. of Transp. 2014 NY Slip Op 08197 Decided on November 21, 2014 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 21, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.
1241 CA 14-00083

[*1]JOHN BISSELL, EDNA BISSELL AND KELLY BISSELL, CLAIMANTS-APPELLANTS,

v

NEW YORK STATE DEPARTMENT OF TRANSPORTATION, DEFENDANT-RESPONDENT. (CLAIM NO. 116958.)

Appeal from an order of the Court of Claims (Renee Forgensi Minarik, J.), entered October 17, 2013. The order granted the motion of defendant for summary judgment and dismissed the claim.

LIPPES & LIPPES, BUFFALO (RICHARD LIPPES OF COUNSEL), FOR CLAIMANTS-APPELLANTS.

LAW OFFICE OF LAURIE G. OGDEN, ROCHESTER (GARY J. O'DONNELL OF COUNSEL), FOR DEFENDANT-RESPONDENT.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied and the claim is reinstated.

Memorandum: Claimants commenced this action alleging that they sustained damage to their real and personal property as the result of defendant's reconstruction of the road adjacent to their property. The Court of Claims erred in entertaining defendant's untimely motion for summary judgment dismissing the claim and in granting the motion. Defendant made its motion more than 10 months after the expiration of the statutory deadline of 120 days and failed to show good cause for its delay in its moving papers (see CPLR 3212 [a]; McNeill v Menter, 19 AD3d 1161, 1161). The court improperly considered the "good cause" proffered by defendant for the first time in its reply papers (see Goldin v New York & Presbyt. Hosp., 112 AD3d 578, 579) and, in any event, defendant's explanation for its untimeliness did not constitute good cause (see Brill v City of New York, 2 NY3d 648, 652; McNeill, 19 AD3d at 1162).

Entered: November 21, 2014

Frances E. Cafarell

Clerk of the Court