Mia v FMZ Holding, LLC

[*1] Mia v FMZ Holding, LLC 2014 NY Slip Op 50620(U) Decided on March 31, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 31, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and SOLOMON, JJ
2013-478 Q C.

MD. Sapon Mia, Respondent,

against

FMZ Holding, LLC, Appellant. FMZ HOLDING, LLC, Third-Party Plaintiff-Appellant, TAL BAGELS, Third-Party Defendant-Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered November 1, 2012. The order denied the branch of a motion by defendant third-party plaintiff seeking leave to serve and file a late motion for summary judgment dismissing the complaint and all counterclaims asserted against it or, in the alternative, on its cause of action for contractual indemnification against third-party defendant.

ORDERED that the order is affirmed, without costs.

Plaintiff commenced this action against defendant FMZ Holding, LLC (FMZ) in the Supreme Court, Queens County, to recover for personal injuries allegedly sustained after his slip and fall down steps located at 333 East 86th Street, New York, New York, on May 3, 2009, during the course of his employment. At the time of the accident, FMZ was the owner of the premises and third-party defendant Tal Bagels (Tal), plaintiff's employer, was a sub-lessee of the premises. On April 8, 2011, prior to the deposition of plaintiff on April 24, 2011 and the deposition of FMZ's witness on June 13, 2011, plaintiff filed a note of issue and certificate of readiness. FMZ commenced a third-party action against Tal on April 25, 2011, asserting causes of action for contribution, common-law indemnification, contractual indemnification and breach of a contract to procure liability insurance. In its third-party answer of September 16, 2011, Tal asserted various affirmative defenses and interposed counterclaims against FMZ for contribution, common-law indemnification and contractual indemnification. FMZ's third-party causes of action for contribution and common-law indemnification were ultimately dismissed by the Supreme Court (Robert J. McDonald, J.) by order dated May 7, 2012, which order also denied severance of FMZ's third-party causes of action for contractual indemnification and for breach of a contract to procure liability insurance. In another order, dated May 30, 2012, the Supreme [*2]Court (Martin J. Schulman, J.) directed Tal to produce a witness for deposition on or before June 29, 2012. Tal's witness was ultimately deposed on June 28, 2012.

The action was subsequently transferred to the Civil Court, pursuant to CPLR 325 (d). Thereafter, by notice of motion dated August 2, 2012, FMZ moved for leave to serve and file a late motion for summary judgment, and, upon the granting of such leave, summary judgment dismissing the complaint and all counterclaims asserted against it, or, in the alternative, summary judgment on its third-party cause of action for contractual indemnification against Tal. By order entered November 1, 2012, the Civil Court denied the branch of the motion seeking leave to serve and file a late motion for summary judgment, finding that FMZ's motion was untimely, pursuant to Brill v City of New York (2 NY3d 648 [2004]), and that FMZ had failed to demonstrate good cause for the delay in making its motion. FMZ appeals from that order, and we affirm.

CPLR 3212 (a) provides that "[a]ny party may move for summary judgment in any action, after issue has been joined; provided however, that the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown." The statute's requirement of "good cause" means "a showing of good cause for the delay in making the motion—a satisfactory explanation for the untimeliness—rather than simply permitting meritorious, nonprejudicial filings, however tardy" (Brill v City of New York, 2 NY3d at 652).

In support of the branch of its motion seeking leave to serve and file a late motion for summary judgment, FMZ stated that it had demonstrated good cause for the delay in making its motion because it had been unable to move for summary judgment until Tal's witness had been deposed. While, under certain circumstances, significant outstanding discovery may constitute good cause for a delay in making a motion for summary judgment (see Avezbakiyev v City of New York, 104 AD3d 888 [2013]; Czernicki v Lawniczak, 25 AD3d 581, 581-582 [2006]), under the particular circumstances presented in this case, we find that FMZ failed to demonstrate how the deposition of Tal's witness was essential to the making of its summary judgment motion, whether with respect to the main action or the third-party action (see Greenpoint Props., Inc. v Carter, 82 AD3d 1157 [2011]; Tower Ins. Co. of NY v Razy Assoc., 37 AD3d 702 [2007]). In view of the absence of a showing of good cause for FMZ's delay in moving for summary judgment, the Civil Court did not improvidently exercise its discretion in denying the branch of FMZ's motion seeking leave to serve and file a late motion for summary judgment.

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Solomon, JJ., concur.
Decision Date: March 31, 2014