Berschanski v Sacco

[*1] Berschanski v Sacco 2008 NY Slip Op 52430(U) [21 Misc 3d 1139(A)] Decided on December 5, 2008 Supreme Court, Kings County Schack, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 5, 2008
Supreme Court, Kings County

Victor Berschanski and IRINA BERSCHANSKI, Plaintiffs,

against

Joseph Sacco, BAY UNISEX BEAUTY SALON, BUKHARI CORP. and W. WINEOTEC, INC., Defendants.



24558/05



Mark M. Basichas & Associates P.C.

NY NY

represented plaintiff.

Defendant - Bay Unisex Beauty Salon

Alice Spitz, Esq.

Molod Spitz & Desantis P.C.

Arthur M. Schack, J.

The motion of defendant BAY UNISEX BEAUTY SALON (BAY) for summary judgment and dismissal of plaintiffs' complaint, pursuant to CPLR Rule 3212, is denied as untimely, for violation of CPLR Rule 3212 (a) and Kings County Supreme Court Uniform Civil Term Rule 13, and failing to demonstrate "good cause" for the delay in making the instant motion. Plaintiff VICTOR BERSCHANSKI (VICTOR) alleges that on June 4, 2005 he exited BAY from a rear door, tripped on a piece of sheetrock in an alley and then fell down exterior steps leading to the basement, at 2810 Ocean Avenue, Brooklyn, New York. Plaintiff IRINA BERSCHANSKI has a derivative claim as VICTOR's spouse. BAY claims that it did not use the alley or basement, did not have a duty to maintain the alley, basement or exterior stairs leading to the basement, and did not owe any duty to VICTOR.

CPLR Rule 3212 (a) states:

Time; kind of action. Any party may move for summary judgment in any action, after [*2]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. [Emphasis added]

Kings County Supreme Court Uniform Civil Term Rule 13 states, "Post Note of Issue Summary Judgment Motions: No motion for summary judgment may be made more than 60 days after filing a Note of Issue, except with leave of Court on good cause shown. See CPLR 3212 (a)." [Emphasis added].

In the instant tort action, the Note of Issue was filed with the Kings County Clerk on November 27, 2007. Defendant BAY made the instant motion on June 9, 2008, 195 days after the Note of Issue was filed, or 107 days after the deadline for a summary judgment motion. If BAY demonstrates "good cause" for its delay, the Court in its discretion may grant an extension of time to make the instant summary judgment motion. (See Brill v City of New York, 2 NY3d 648, 652 [2004]; First Union Auto Finance, Inc. v Donat, 16 AD3d 372 [2d Dept 2005]; Bevilacqua v City of New York, 21 AD3d 340 [2d Dept 2005]; Giordano v CSC Holdings, Inc., 29 AD3d 948 [2d Dept 2006]; Davidson v Brisman, 40 AD3d 574 [2d Dept 2007]; McNally v Beva Cab Corp., 45 AD3d 820 [2d Dept 2007]; Kennedy v Bae, 51 AD3d 980 [2d Dept 2008]; Finger v Saal, ___ AD3d ___, 2008 NY Slip Op 09027 [2d Dept Nov. 18, 2008]).

Defendant BAY asserts that it has "good cause" for its delay because of plaintiffs' failure to serve BAY with the Note of Issue and providing BAY with outstanding discovery. BAY's counsel, in a letter dated December 26, 2007 [exhibit G of motion], informed plaintiffs' counsel that "[w]e recently discovered on E-law that a note of issue was filed in this case, however, we were never provided with a copy of the note of issue." Further, BAY's counsel alleges that discovery was incomplete, in that plaintiffs' counsel had to provide new HIPPA compliant authorizations to release medical records from Coney Island Hospital. A letter to this effect was sent by BAY's counsel to plaintiffs' counsel on March 5, 2008 [exhibit H of motion] and BAY's counsel received VICTOR's medical records on May 13, 2008.

Plaintiffs' counsel, in his affirmation in opposition, attached a copy of his November 15, 2008 affirmation of service of the Note of Issue [exhibit C of plaintiffs' affirmation in opposition]. A properly executed affidavit of service raises a presumption that the Note of Issue was served when the affidavit of service purports the document to have been served. (Wasif v Khan, 36 AD3d 610 [2d Dept 2007]). The Wasif Court, at 611, instructed that "[t]he mere denial of receipt of these papers by the plaintiffs' attorney was insufficient to overcome the presumption of a proper mailing and receipt (see Sarva v Chakravorty, 14 AD3d 689 [2d Dept 2005]; Matter of Most v Morrison, 280 AD2d 603 [2d Dept 2001])." The Appellate Division, Second Department, recently held that "[g]iven the presumption of service created by plaintiff's submission of an affidavit of service of its summary judgment motion, defendants' mere denial of receipt fails to constitute a reasonable excuse for their default (see Sarva v Chakravorty, 14 AD3d 689, 690 [2d Dept 2005]." (Mortgage Electronic Registration Systems, Inc. v Schuh, 48 AD3d 838, 841 [2d Dept 2008]).

With respect to the outstanding discovery, plaintiffs' counsel provided authorizations to [*3]defendants' counsel almost three years ago, on December 6, 2005 [exhibit D of plaintiffs' affirmation in opposition], and again on January 16, 2008 [exhibit E of plaintiffs' affirmation in opposition].

Assuming that BAY was unaware that the Note of Issue had been filed until its counsel sent the letter to plaintiffs' counsel on December 26, 2007, the Court deems December 26, 2007 to be the constructive note of issue date. (McNally v Beva Cab Corp., supra at 811). Sixty days post December 27, 2007 was February 25, 2008. However, the instant motion was made on June 9, 2008, 165 days after December 27, 2008. Further, BAY's instant motion is based upon and argued on liability issues, not damages, with information and deposition testimony known to all the parties well before the Note of Issue was filed. Waiting for medical authorizations after February 25, 2008 was not essential to the making of the instant motion, and thus is not "good cause" for BAY's delay in making the instant summary judgment motion. (Tower Ins. Co. of New York v Razy Associates, 37 AD3d 702, 703 [2d Dept 2007]). It is clear that the Coney Island Hospital medical authorizations are irrelevant to the merits of BAY's instant summary judgment motion.

A late motion for summary judgment is not excusable where the movant's contentions in support of the summary judgment motion are based upon previously known facts and not based upon information revealed in belated discovery provided by an opponent. (Caiola v Allcity Ins. Co., 277 AD2d 273 [2d Dept 2000]). In Jackson v Jamaica First Parking, LLC (49 AD3d 501 [2d Dept 2008]), the Court affirmed a Supreme Court, Queens County order which denied summary judgment as untimely for failure to demonstrate "good cause" for delay after the 120-day deadline imposed by CPLR Rule 3212 (a). The Court held that "[t]he record contains no proof that outstanding discovery prevented the appellant for making a timely motion for summary judgment (see Espejo v Hiro Real Estate Co., 19 AD3d 360 [2d Dept 2005])." Subsequently, the Appellate Division, Second Department, instructed in Anderson v Kantares (51 AD3d 954 [2d Dept 2008]), that: The Supreme Court erred in entertaining the motion of the defendant . . . for summary judgment, which was made returnable 29 days beyond the deadline fixed by the Supreme Court in the so-ordered stipulation, where she failed to demonstrate good cause for the delay (see CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648, 652; DiBenedetto v Lowe's Home Ctrs., Inc., 43 AD3d 853). The testimony of the nonparty witness, whose deposition transcript the defendant was reportedly awaiting, was not relevant to the defendant's motion (see Jackson v Jamaica First Parking, LLC (49 AD3d 501; Tower Ins. Co. of New York v Razy Associates, 37 AD3d 702, 703; Espejo v Hiro Real Estate Co., 19 AD3d 360, 361). Accordingly, the Supreme Court erred in reaching the merits of the motion (see Brill v City of New York, 2 NY3d at 650).

Therefore, with the outstanding discovery, the Coney Island Hospital medical authorizations, not relevant to the merits of defendant BAY's motion for summary judgment, defendant BAY has failed to demonstrate "good cause" for its untimely summary judgment motion. BAY's instant summary judgment is denied.

Conclusion

Accordingly, it is [*4]

ORDERED, that the motion of defendant BAY UNISEX BEAUTY SALON for summary judgment and dismissal of plaintiffs' complaint, pursuant to CPLR Rule 3212, is denied as untimely, for violation of CPLR Rule 3212 (a) and Kings County Supreme Court Uniform Civil Term Rule 13, and the failure of defendant BAY UNISEX BEAUTY SALON to demonstrate "good cause" for its delay in making the instant motion for summary judgment.

This constitutes the Decision and Order of the Court.

ENTER

_________________________

HON. ARTHUR M. SCHACKJ. S. C.