Opinion
13606 Index No. 190015/16 Case No. 2020-02476
04-20-2021
Paul M. HETTINGER, Plaintiff–Respondent, v. AMCHEM PRODUCTS, INC., etc., et al., Defendants, P & H Mining Equipment, etc., Defendant–Appellant.
Barclay Damon LLP, Albany (Linda J. Clark of counsel), for appellant. Weitz & Luxenberg, P.C., New York (Jason P. Weinstein of counsel), for respondent.
Barclay Damon LLP, Albany (Linda J. Clark of counsel), for appellant.
Weitz & Luxenberg, P.C., New York (Jason P. Weinstein of counsel), for respondent.
Webber, J.P., Kern, Oing, Gonza´lez, JJ.
Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered on or about March 30, 2020, which denied as untimely defendant P & H Mining Equipment, a Subsidiary of Joy Global's motion for summary judgment dismissing the complaint and all cross claims against it, unanimously affirmed, without costs.
The New York City Asbestos Litigation (N.Y.CAL) Coordinating Justice has the authority under the Uniform Rules for Trial Courts ( 22 NYCRR) § 202.69 to issue a Case Management Order (CMO) or modify an existing CMO, after consultation with counsel, that sets forth procedural protocols for the NYCAL that do not strictly conform with the CPLR so long as those protocols do not deprive a party of its right to due process ( Matter of New York City Asbestos Litig. [All NYCAL Cases], 159 A.D.3d 576, 74 N.Y.S.3d 180 [1st Dept. 2018], appeal dismissed 32 N.Y.3d 945, 84 N.Y.S.3d 80, 108 N.E.3d 1026 [2018] ). The CMO mandates that defendants move for summary judgment at least 30 days before a trial date. Here, defendant made its motion eight days before the trial date set in a court scheduling order, and failed to show good cause for its tardiness, relying instead on its misunderstanding of the order (see Miceli v. State Farm Mut. Auto. Ins. Co., 3 N.Y.3d 725, 726, 786 N.Y.S.2d 379, 819 N.E.2d 995 [2004] ).
Contrary to defendant's contention, the court properly considered plaintiff's untimely opposition to the motion ( CPLR 2214[b] ), which simply pointed out that the motion was late, and which did not prejudice defendant (see Stephen LLC v. Zazula, 171 A.D.3d 488, 488–489, 95 N.Y.S.3d 819 [1st Dept. 2019] ). Further, the court could properly have considered and ultimately denied the motion as untimely without plaintiff's opposition (see Ingram v. Association for Metroarea Autistic Children, Inc., 190 A.D.3d 458, 140 N.Y.S.3d 28 [1st Dept. 2021] ).
We have considered defendant's remaining arguments and find them unavailing.