Powers v Sculco

Powers v Sculco 2011 NY Slip Op 08740 Decided on November 29, 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 29, 2011
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
REINALDO E. RIVERA, J.P.
RANDALL T. ENG
ARIEL E. BELEN
LEONARD B. AUSTIN, JJ.
2011-01098
(Index No. 100499/07)

[*1]Dianne M. Powers, etc., et al., respondents,

v

Thomas P. Sculco, etc., et al., appellants.




Peltz & Walker, New York, N.Y. (Bhalinder L. Rikhye of
counsel), for appellants.
Connors & Connors, P.C., Staten Island, N.Y. (John P.
Connors, Jr., and Leonard A. Robusto of
counsel), for respondents.


DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, etc., the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (Minardo, J.), dated November 17, 2010, as denied, as untimely, their cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The note of issue in this action was filed on January 8, 2010. In a preliminary conference order, the Supreme Court required dispositive motions to be made within 60 days of the filing of the note of issue, i.e., by March 9, 2010. The defendants filed their cross motion for summary judgment more than four months after the deadline set by the Supreme Court. Contrary to their contention, the defendants failed to show "good cause" for filing a late motion (CPLR 3212[a]; see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725; Brill v City of New York, 2 NY3d 648, 652; Castillo v Valente, 85 AD3d 1080; Riccardi v CVS Pharmacy, Inc., 60 AD3d 838). Accordingly, the Supreme Court properly denied, as untimely, the defendants' cross motion for summary judgment dismissing the complaint.

In light of our determination, we need not reach the defendants' remaining contentions.
RIVERA, J.P., ENG, BELEN and AUSTIN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court