Tong Li v Citiwide Auto Leasing, Inc.

[*1] Tong Li v Citiwide Auto Leasing, Inc. 2014 NY Slip Op 50481(U) Decided on March 17, 2014 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 17, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2012-2222 Q C.

Tong Li, M.D., as Assignee of DEXTER GITTENS, Appellant,

against

Citiwide Auto Leasing, Inc., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (James E. D'Auguste, J.), entered August 9, 2012. The order granted defendant's motion to dismiss the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant's motion to dismiss the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint, pursuant to CPLR 3211 (a) (7), or, in the alternative, for summary judgment dismissing the complaint. It is undisputed that, under the rules of Part 41 of the Civil Court, motions for summary judgment are to be filed within 60 days of the filing of the notice of trial. It is also undisputed that defendant filed its motion in Part 41 more than 60 days after the notice of trial had been filed. The Civil Court granted the motion, and plaintiff appeals. It was improper for the Civil Court to consider the branch of defendant's untimely motion for summary judgment dismissing the complaint in the absence of a showing by defendant of good cause for not serving the motion within 60 days of the filing of the notice of trial, the Civil Court equivalent of a note of issue (see Goldin v New York & Presbyt. Hosp., 112 AD3d 578 [2013]; Chimbay v Palma, 14 Misc 3d 130[A], 2007 NY Slip Op 50019[U] [App Term, 2d & 11th Jud Dists 2007]; see also CPLR 3212 [a]; see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]; Brill v City of New York, 2 NY3d 648 [2004]; Ofman v Ginsberg, 89 AD3d 908 [2011]; First Union Auto Fin., Inc. v Donat, 16 AD3d 372 [2005]). In the absence of such a showing, the Civil Court has no discretion to entertain even a meritorious, nonprejudicial motion for summary judgment (see Brill v City of New York, 2 NY3d at 652). Consequently, the branch of defendant's motion seeking summary judgment should have been denied as untimely.

With respect to the branch of defendant's motion which was pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause of action, the allegations in the complaint stated a cognizable cause of action and were sufficient to give defendant notice of the transactions intended to be proved (see Compas Med., P.C. v Mercury Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50459[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; see generally Leon v Martinez, 84 NY2d 83 [1994]). Consequently, the Civil Court erred in granting the branch of defendant's motion seeking to dismiss the complaint pursuant to CPLR 3211 (a) (7).

Accordingly, the order is reversed and defendant's motion to dismiss the complaint is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 17, 2014