Tucci v Colella

[*1] Tucci v Colella 2010 NY Slip Op 50396(U) [26 Misc 3d 1234(A)] Decided on March 12, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 12, 2010
Supreme Court, Kings County

Joseph Tucci, Plaintiff,

against

Anna M. Colella, FREIGHTLINER, MARCUS WILSON PENSKE TRUCK LEASING CO., LP and ZEIGLER TRUCKING, INC., Defendants.



11915/07



Plaintiff

Paul J. Edelsteins, Esq.

Edelsteins Faegenburg & Brown

NY NY

Defendant

Richard E Weber, Esq.

Elmsford NY

Arthur M. Schack, J.

In this motor vehicle accident case, the instant motion for summary judgment and dismissal of plaintiff's complaint against them by defendants FREIGHTLINER, MARCUS WILSON, PENSKE TRUCK LEASING CO., LP and ZEIGLER TRUCKING, INC. (ZEIGLER defendants), pursuant to CPLR Rule 3212 (a), because plaintiff JOSEPH TUCCI failed to sustain a serious injury, as defined by Insurance Law §§ 5102 and 5104, is denied as untimely. The ZIEGLER defendants violated CPLR Rule 3212 (a) and Kings County Supreme Court Uniform [*2]Civil Term Rule C (6). CPLR Rule 3212 (a) states:

Time; kind of action. Any 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. [Emphasis added]

Kings County Supreme Court Uniform Civil Term Rule C (6), effective January 2, 2010, derived from the prior Kings County Supreme Court Uniform Civil Term Rule 13, states:

Post Note of Issue Summary Judgment Motion:In cases where the City

of New York is a defendant and is represented by the Tort Division of

the Corporation counsel's office, summary judgement motions may be

made no later than 120 days after the filing of a Note of Issue. In all

other matters, including third party actions, motions for summary

judgment may be made no later than 60 days after he filing of a

Note of Issue. In both instances the above time limitations may only

be extended by the Court upon good cause shown. See CPLR

3212 (a). [Emphasis added].

The note of issue, in the instant action, was filed with the Kings County Clerk on February 23, 2009. Then, the ZIEGLER defendants made the instant summary judgment motion on December 8, 2009, 288 days post note of issue. The ZIEGLER defendants argue, in ¶ 11 of their affirmation in support of the motion, that "the Court should exercise it's discretion in allowing for a late filing of this motion," and cite, in support of their late filing, seven decisions rendered from 1998 to 2000. Other than arguing the merits of their motion, the ZIEGLER defendants do not attempt to explain any good cause for their 228-day delay in making the instant motion.

It appears to the Court that counsel for the ZIEGLER defendants is lost in a time warp. All of the decisions cited by counsel for the ZIEGLER defendants were issued prior to the seminal Court of Appeals decision, with respect to late summary judgment motions, Brill v City of New York (2 NY3d 648 [2004]). The Brill Court instructed, at 652, that:

"good cause" in CPLR 3212 (a) requires a showing of good cause

for the delay in making the motiona satisfactory explanation

for the untimelinessrather than simply permitting meritorious,

nonprejudicial filings, however tardy. That reading is supported

by the language of the statuteonly the movant can show good [*3]

causeas well as by the purpose of the amendment, to end the

practice of eleventh-hour summary judgment motions. No excuse

at all, or a perfunctory excuse, cannot be "good cause."

Subsequent to Brill, the Court of Appeals, in Miceli v State Farm Mut. Auto. Ins. Co. (3 NY3d 725 [2004]), addressed an appeal from the granting of a summary judgment motion, in Erie County Supreme Court, made more than 120 days after the filing of the note of issue. The Appellate Division, 4th Department affirmed the decision, at 306 AD2d 903 [2003]. The previously successful plaintiff, at the Court of Appeals, offered no excuse for her failure to comply with CPLR Rule 3212 (a) and only argued that she had a meritorious claim. The Court, at 727, stated that "to countenance plaintiff's position here would require us to overturn our own recent precedent. This we refuse to do, and we therefore reverse the order of the Appellate Division awarding summary judgment to plaintiff, without considering the merit of the motion." In emphasizing its Brill holding, the Court stated, at 726 - 727, "[a]s we made clear in Brill, and underscore here, statutory

time frameslike court-ordered time frames (see Kihl v Pfeffer, 94 NY2d 118 [1999]are not options, they are requirements, to betaken seriously by the parties. Too many pages

of the Reports, and hours of the courts, are taken up with deadlines that are simply

ignored."

The Appellate Division, First Department, in Perini Corporation v City of New

York (16 AD3d 37 [2005]), stated that in Brill and Miceli "the Court of Appeals spoke clearly and decisively on what constitutes good cause' for obtaining an extension of time to comply with the statutory requirements for moving for summary judgment after a party files a note of issue." The Court instructed that "in the wake of Miceli and Brill, parties may no longer rely on the merits of their cases to extricate themselves from failing to show good cause for a delay in moving for summary judgment pursuant to CPLR 3212 (a)."

The Appellate Division, Second Department, in First Union Auto Finance, Inc. v Donat (16 AD3d 372 [2005]), synthesized Brill, Miceli and Kings County Supreme Court Uniform Civil Term Rule13 [the predecessor to the present Kings County Supreme Court Civil Term Rule C (6)]. The Court strictly construed Kings County Supreme Court Uniform Civil Term Rule 13, holding at 373, that "the merits of the motion [for summary judgment more than 60 days post note of issue] should not have been considered unless good cause was shown for the delay." Further, at 373, citing both Brill and Miceli, the Court held, "[s]ince no good cause for the delay was shown, the Supreme Court erred in considering the motion and cross motion on the merits. . . ."

Second Department post Brill and Miceli decisions continue to hold movants to

CPLR Rule 3212 (a) time limits, or shorter periods if set by the courts, such as in Kings County Supreme Court Uniform Civil Term Rule 13 or the successor Rule C (6). For instance, the Court could have been considering the instant summary judgment motion when it instructed in Dettman v Page (18 AD3d422 [2005]): [*4]

Under the standard announced in Brill, leave to file a late motion for

summary judgment under CPLR Rule 3212 (a) requires a showing

of a satisfactory explanation for the delay in filing the motion. In the

absence of such a showing, a late summary judgment motion may not

be considered, even if it appears to have merit and the delay has not

prejudiced the adversary (see Brill v City of New York, supra at 652).

The defendant here failed to make the required showing. [Emphasis

added] (See Riccardi v CVS Pharmacy, Inc., 60 AD3d838 [2d Dept 2009]; Finger v Saal, 56 AD3d 606 [2d Dept 2008]; Kennedy v Bae, 51 AD3d 980 [2d Dept 2008]; McNally v Beva Cab Corp., 45 AD3d 820 [2d Dept 2007]; Davidson v Brisman, 40 AD3d 574 [2d Dept 2007]; Giordano v CSC Holdings, Inc., 29 AD3d 948 [2d Dept 2006]; Bevilacqua v City of New York, 21 AD3d 340 [2d Dept 2005]; Milano v George, 17 AD3d 644 [2d Dept 2004]).

Conclusion

Accordingly, it is

ORDERED, that the motion of defendants FREIGHTLINER, MARCUS WILSON, PENSKE TRUCK LEASING CO., LP and ZEIGLER TRUCKING, INC.

for summary judgment and dismissal of plaintiff's complaint against them, pursuant to CPLR Rule 3212 (a), is denied as untimely.

This constitutes the Decision and Order of the Court.

ENTER

____________________________

HON. ARTHUR M. SCHACKJ. S. C.