Opinion
06-22-2016
Lucia MONTES, respondent, v. CITY OF NEW YORK, defendant, Julia E. Cortez, appellant.
Karen L. Lawrence (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum ], of counsel), for appellant. William Schwitzer & Associates, P.C., New York, N.Y. (Andrea M. Arrigo and Howard R. Cohen of counsel), for respondent.
Karen L. Lawrence (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum ], of counsel), for appellant.
William Schwitzer & Associates, P.C., New York, N.Y. (Andrea M. Arrigo and Howard R. Cohen of counsel), for respondent.
Opinion In an action to recover damages for personal injuries, the defendant Julia E. Cortez appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Flug, J.), dated September 30, 2014, as denied as untimely her motion pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against her based on the doctrine of collateral estoppel.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action against the defendants to recover damages for personal injuries she allegedly sustained when she slipped and fell on ice while walking on a sidewalk abutting a one-family residential property in Queens owned by the defendant Julia E. Cortez. After issue was joined and discovery completed, Cortez moved pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against her based on the doctrine of collateral estoppel.
Since Cortez's motion was made after issue was joined, the Supreme Court correctly determined that it should be treated as a motion for summary judgment pursuant to CPLR 3212 (see JP Morgan Chase Bank, N.A. v. Johnson, 129 A.D.3d 914, 915, 10 N.Y.S.3d 446 ; Wesolowski v. St. Francis Hosp., 108 A.D.3d 525, 526, 968 N.Y.S.2d 181 ; Kavoukian v. Kaletta, 294 A.D.2d 646, 646, 742 N.Y.S.2d 157 ). Moreover, the court properly denied the motion as untimely in view of Cortez's failure to show “good cause” for not serving the motion within 120 days after the filing of the note of issue (CPLR 3212[a] ; see Brill v. City of New York, 2 N.Y.3d 648, 652, 781 N.Y.S.2d 261, 814 N.E.2d 431 ; Hsiao Yung Wang v. Chei Fong Lee, 110 A.D.3d 1060, 974 N.Y.S.2d 256 ; Ofman v. Ginsberg, 89 A.D.3d 908, 908, 933 N.Y.S.2d 103 ).
The parties' remaining contentions need not be reached in light of our determination.
RIVERA, J.P., ROMAN, MALTESE and DUFFY, JJ., concur.