Derby v Bitan

Derby v Bitan 2011 NY Slip Op 08322 Decided on November 15, 2011 Appellate Division, Second 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 15, 2011
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
MARK C. DILLON, J.P.
THOMAS A. DICKERSON
CHERYL E. CHAMBERS
ROBERT J. MILLER, JJ.
2010-09563
(Index No. 8748/07)

[*1]Colleen Derby, appellant,

v

Fabian Bitan, etc., respondent.




Rosalee Charpentier, Kingston, N.Y., for appellant.
Aaronson Rappaport Feinstein & Deutsch, LLP, New York,
N.Y. (Elliott J. Zucker of counsel), for
respondent.


DECISION & ORDER

In an action to recover damages for medical malpractice, lack of informed consent, and breach of contract, the plaintiff appeals from an amended order of the Supreme Court, Dutchess County (Pagones, J.), dated August 26, 2010, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the amended order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.

The plaintiff filed a note of issue on March 15, 2010, and the defendant moved for summary judgment dismissing the complaint on July 14, 2010. The plaintiff opposed the defendant's motion on the ground that it was untimely. The Supreme Court determined that the motion was timely and thereupon, granted the motion. We reverse.

CPLR 3212(a) provides that a motion for summary judgment may not be made more than 120 days after the filing of the note of issue "except with leave of court on good cause shown." Here, contrary to the defendant's contention, his motion for summary judgment was made 121 days after the note of issue was filed and, therefore, it was untimely (see CPLR 3212[a]; see also General Construction Law § 20). Since the defendant did not seek leave of the court, and failed to offer any reason for the delay, there was no "leave of court on good cause shown," as required by CPLR 3212(a), and the defendant's motion should have been denied without consideration of the merits (see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726-727; Brill v City of New York, 2 NY3d 648, 652; Lyons v Donnelly, 54 AD3d 393, 393; Lofstad v S & R Fisheries, Inc., 45 AD3d 739, 743; Jones v Ricciardelli, 40 AD3d 936, 936).

The plaintiff's contention regarding recusal is not properly before this Court (see Ferdinand v Ferdinand, 56 AD3d 604, 604; Oparaji v Scheiner, 50 AD3d 753, 754).

The parties' remaining contentions either are without merit or need not be addressed in light of the foregoing determination.
DILLON, J.P., DICKERSON, CHAMBERS and MILLER, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court