Bouilland v Angulo
Annotate this CaseDecided on September 27, 2004
Supreme Court, New York County
LARA BOUILLAND, an infant by her Mother and Natural Guardian, STACY BOUILLAND, and STACY BOUILLAND, Individually, Plaintiffs,
against
DR. MORRIS ANGULO, WITHROP PEDIATRIC ASSOCIATES, P.C., WINTHROP UNIVERSITY HOSPITAL, DR. STEPHEN BROWN, COLUMBIA- PRESBYTERIAN MEDICAL CENTER and NEW YORK PRESBYTERIAN HOSPITAL, Defendants.
114116/01
Oan B. Carey, J.
Motion by defendant Winthrop University Hospital for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.
A motion for summary judgment may be made by any party to an action after the joinder of issue (CPLR 3212[a]). The court may set a date after which no such motion may be made, provided that the date is no earlier than thirty days after the filing of the note of issue (id). In the event that the court sets no such date, a motion for summary judgment must be made no later than one hundred and twenty days after the filing of the note of issue (id).
Where a party fails to make a motion for summary judgment in a timely manner, the motion may only be entertained by the court if the movant can show "good cause" for the delay in making the motion (i.e. satisfactory explanation for the untimeliness) (Brill v City of New York, 2 NY3d 648 [2004]). "Good cause" for delay in making a summary judgment motion has been found to exist where: (1) relevant discovery requests or depositions were outstanding (see Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124 [2000][depositions of two key fact witnesses]; Kunz v Gleeson, 9 AD3d 480 [2d Dept. 2004][independent medical examinations of plaintiff]), (2) the final deposition transcripts upon which the [*2]movant intended to rely had not yet been returned (see Burnell v Huneau, 1 AD3d 758 [3d Dept. 2003]), (3) the movant's attorney was experiencing a family emergency (see Stimson v E.M. Cahill Co., Inc., 8 AD3d 1004 [4th Dept. 2004]; Centeno v Metro. Transp. Auth., 193 Misc 2d 617 [Sup Ct, Nassau County 2002]), (4) the court expressly requested that the motion be made at a later date (see Sarigul v New York Tele. Co., 4 AD3d 168 [1st Dept. 2004]), and (5) the motion was premised on an appellate determination on a potentially determinative issue on a prior appeal that could not have been raised in a timely fashion (see Trump Village Section 3, Inc. v New York State Hous. Finance Agency, 307 AD2d 891 [1st Dept. 2003]). Neither the merits of an untimely motion nor the absence of prejudice to the adversary are relevant in determining whether "good cause" has been established (see Brill v City of New York, supra; Thompson v New York City Bd. of Ed., 10 AD3d 650 [2d Dept. 2004]).
Should an untimely summary judgment motion unaccompanied by the requisite "good cause" showing be submitted to the court, the motion must be denied, and the claims tied to the motion placed on the trial calendar (see Brill v City of New York, supra). The untimely movant's only recourse is to seek dismissal of the subject claims after the plaintiff rests or to request a directed verdict during the trial (see Brill v City of New York, supra; Thompson v New York City Bd. of Ed., supra).
In the case at bar, the note of issue was filed on October 31, 2003. As the court required all summary judgment motions to be made within sixty days of the filing of the note of issue, such motions were to be made by December 30, 2003. However, the instant motion for summary judgment was made by defendant Winthrop University Hospital ("the Hospital") on February 23, 2004 when it was served via mail (see CPLR 2103[b][2], 2211). Thus, the motion was fifty-five days late, and, absent "good cause", the motion must be denied regardless of its merits.
The Hospital maintains that "good cause" exists to address the merits of its motion because it delayed making the motion while attempting to secure from the plaintiffs a discontinuance of this action, and because the deposition of a witness remains outstanding.
The Hospital's assertion that "good cause" is established because it was in contact with plaintiffs' counsel attempting to secure a discontinuance of the action is without merit. Such an excuse can not constitute "good cause" since it would allow a dilatory movant to unilaterally manufacture "good cause" by simply contacting the non-moving party prior to the motion deadline and requesting a discontinuance. Perhaps under different circumstances, where there is evidence that the non-moving party indicated that it would in fact stipulate to a discontinuance, this argument could be availing, however, such is not the case at bar.
As the Hospital correctly notes, "good cause" may exist where a movant delayed making its application to complete outstanding depositions (see Gonzalez v 98 Mag Leasing Corp., supra). However, the Hospital did not move to vacate the note of issue and compel the witness to appear for a deposition, and the deposition was not conducted before the [*3]Hospital made its motion. Thus, the deposition testimony did not serve as an evidentiary basis for the Hospital's motion, and, concomitantly, the delay in making the motion was fruitless and unwarranted.
Based upon the foregoing, it is hereby
ORDERED that the motion is denied.
Dated: 09/27/2004
JOAN B. CAREY J.S.C.
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