Opinion
No. 15993/10.
2012-08-9
Aaliyah RAMDEO and Rachel Francis, infants by their mothers and natural guardian Kumarie Francis and Kumarie Francis individually, Plaintiffs, v. Abir IBRAHIM, Lino Cahuana and Janelle Car Service Corp., Defendants.
BERNICE DAUN SIEGAL, J.
The following papers numbered 1 to 18 read on this motion for an order pursuant to CPLR § 3212 granting summary judgment and dismissing the complaint of plaintiffs, Rachel Francis and Kumarie Francis, in as much as Plaintiffs' alleged injuries cannot meet the serious injury threshold requirement, mandated by Insurance Law § 5102(d).
+---------------------------------------------------------------+ ¦PAPERS ¦NUMBERED¦ +------------------------------------------------------+--------¦ ¦Notice of Motion–Summary Judgment–Affidavits–Exhibits.¦1–4 ¦ +------------------------------------------------------+--------¦ ¦Notice of Motion–Renew. ¦5–9 ¦ +------------------------------------------------------+--------¦ ¦Affirmation in Opposition–Affidavits–Exhibits. ¦10–12 ¦ +------------------------------------------------------+--------¦ ¦Affirmation in Reply–Renew. ¦13–15 ¦ +------------------------------------------------------+--------¦ ¦Affirmation in Reply–Summary Judgment. ¦16–18 ¦ +---------------------------------------------------------------+
Upon the foregoing papers, it is hereby ordered that the motion is resolved as follows:
Defendants, Lino Cahuana and Janelle Car Service Corp., (hereinafter collectively known as “defendants”) move for an order granting summary judgment pursuant to CPLR § 3212 and dismissing plaintiffs' complaint for plaintiffs' failure to meet the serious injury threshold required by New York Insurance Law § 5102(d). Defendants then moved for an order to renew, dated March 3, 2012, to file a late motion for summary judgment. Defendant Abir Ibrahim (hereinafter “defendant Ibrahim”) cross-moved for an order granting summary judgment pursuant to CPLR § 3212 and dismissing plaintiffs' complaint for plaintiffs' failure to meet threshold requirement of the New York No–Fault law.
Facts
This is an action for personal injuries that plaintiffs, Rachel Francis and Kumarie Francis, allegedly sustained as a result of a motor vehicle accident February 24, 2008 occurring on Vernon Boulevard and its intersection with 31st Drive, Queens, New York.
Contentions
Defendants contend in its original motion and motion to renew that the injuries allegedly sustained by plaintiffs do not constitute a “serious injury” required by New York Insurance Law § 5102(d). Defendants also contend in its motion to renew that their new counsel failed to appear for the court's calendar date of February 22, 2012 to motion for permission to file a late motion for summary judgment because their new counsel was unaware of this appearance since the litigation file was in the process of being transferred to the new counsel's office and defendants did not intend to abandon their motion for summary judgment. Defendant Ibrahim contends that plaintiffs failed to meet the threshold requirement of the New York No–Fault law.
In opposition, plaintiffs contend that defendants' initial motion for summary judgment, dated December 23, 2011, was not brought within 120 days of the note of issue filed on August 23, 2011 (e.g., by December 21, 2011) pursuant to CPLR § 3212(a) and defendants have not shown a “good cause” for the delay in submitting its untimely motion.
Defendants' motion and defendant Ibrahim's cross-motion for summary judgment are denied in their entirety as more fully set below.
Discussion
CPLR § 3212(a) prohibits the filing of summary judgment motions more than 120 days after the note of issue is filed except with leave of court “on good cause shown.” ( See CPLR § 3212(a).) CPLR § 3212(a) was amended by the Legislature to prevent the “eleventh-hour summary judgment motions.” (Brill v. City of New York, 2 NY3d 648, 651 [2004].) Subsequent to the ruling in Brill, the Court of Appeals made it clear that “statutory time frames ... are not options, they are requirements, to be taken seriously by the parties.” (Miceli v. State Farm Mutual Automobile Insurance Co., 3 NY3d 725, 726 [2004].)
The “good cause” requirement generally requires “a satisfactory explanation for the untimeliness,” instead of allowing “meritorious, nonprejudicial filings, however tardy.” (Brill, 2 NY3d at 652.) What constitutes “good cause” for failure to file a summary judgment motion within the statutory period refers less to the merits of the motion than to the reason for the untimeliness. ( See Deberry–Hall v. County of Nassau, 88 AD3d 634, 635 [2d Dep't 2011]; Kennedy v. Bae, 51 AD3d 980, 981 [2d Dep't 2008]; Milano v. George, 17 AD3d 644, 645 [2d Dep't 2005].) Furthermore, if the movant fails to demonstrate good cause, then it is “unnecessary to reach the merits of the motion for summary judgment.” (Deberry–Hall, 88 AD3d at 635;see also Finger v. Saal, 56 AD3d 606, 606–07 [2d Dep't 2008]; Kennedy, 51 AD3d at 981;Milano, 17 AD3d at 645.)
Here, the note of issue was filed on August 23, 2011, and 120 days from this date would have been December 21, 2011. Defendants initially moved for summary judgment on December 23, 2011. It is clear that this motion was brought two days after the 120–day statutory deadline established by CPLR § 3212(a). Thus, the within motion for summary judgment is untimely.
Defendants contend that their motion for summary judgment was “minimally late.” However, a motion for summary judgment that is just one day late still requires “good cause” to be shown for the delay. ( See Derby v. Bitan, 89 AD3d 891 [2d Dep't 2011]; see also Milano, 17 AD3d 644.) Thus, since the within motion for summary judgment was made two days late, “good cause” must be shown.
Defendants contend that in October of 2011, after the Note of Issue was filed, plaintiffs served HIPAA authorizations for medical records for Mt. Sinai Hospital and various medical providers. Defendants further contend that the medical records from Mt. Sinai Hospital were relied upon in their motion for summary judgment; and, therefore, they have presented “good cause” for their delay. However, defendants' own medical expert, Stefan Keiserman, Otolaryngologist, stated in his June 21, 2011 report that he had reviewed legally authenticated Mt. Sinai Emergency Records, belying the argument that the HIPAA authorizations issued in October 2011 were necessary to obtain the emergency room records of Mt. Sinai. In addition, each of the remaining defendants' medical expert records, relied upon in the motion for Summary Judgment, were dated prior to the date of the Note of Issue evidencing that defendants did not rely upon the Mt. Sinai Hospital records. Accordingly, there is no proof that outstanding discovery prevented defendants from making a timely motion for summary judgment. ( See Van Dyke v. Skanska USA Civil Northeast, Inc., 83 AD3d 1049 [2d Dep't 2011]; Anderson v. Kantares, 51 AD3d 954 [2d Dep't 2008].)
With respect to the persistent procedural snafu-when defendants became aware of the necessity to ask the court's permission to file a late motion for summary judgment, the former counsel filed a motion requesting such permission. In their reply affirmation, defendants' new counsel asserts that he was unaware of the February 22, 2012 date to appear on the motion for permission to file a late motion for summary judgment because the litigation file was in the process of being transferred to the new counsel's office; and that new counsel only inadvertently missed the court appearance and did not intend to abandon defendants' motion. Moreover, defendants ask this court to consider their motion on its merits since plaintiffs will not be prejudiced by the court's consideration of defendants' motion on its merits. The Court of Appeals in Brill clearly rejected the allowance of untimely “meritorious, nonprejudicial filings,” held that “good cause” must be shown, and “[n]o excuse at all, or a perfunctory excuse, cannot be “good cause.” (Brill, 2 NY3d at 652.) In essence, defendants failed to show “good cause” or to provide any reasonable excuse in their reply affirmation for the delay of bringing the initial motion for summary judgment. Therefore, defendants' motion for summary judgment is denied in its entirety as untimely.
In addition, defendant Ibrahim brought a cross-motion on March 30, 2012, even though the note of issue was filed on August 23, 2011 and 120 days from this date would have expired on December 21, 2011; and defendant Ibrahim chose to adopt and to incorporate the facts, procedural history, legal arguments, and exhibits that defendants set forth in the initial motion brought on December 23, 2011 by defendants. In essence, defendant Ibrahim's cross-motion was made on identical grounds as that of defendants.
“[A]n untimely ... cross motion for summary judgment may be considered by the court where ... a timely motion for summary judgment was made on nearly identical grounds.” (Homeland Insurance Co. of New York v. National Grange Mutual Insurance Co., 84 AD3d 737, 738 [2d Dep't 2011]; see also Perfito v. Einhorn, 62 AD3d 846, 847 [2d Dep't 2009]; Grande v. Peteroy, 39 AD3d 590, 591–92 [2d Dep't 2007]; Bressingham v. Jamaica Hospital Medical Center, 17 AD3d 496, 497 [2d Dep't 2005].) “In such circumstances, the issues raised by the cross motion are already properly before the motion court and thus, the nearly identical nature of the grounds may provide the requisite good cause ... to review the untimely cross motion on the merits.” (Homeland Insurance Co. of New York, 84 AD3d at 738–39;see alsoGrande, 39 AD3d at 592.)
However, as stated above, defendants failed to show “good cause” or to provide a reasonable excuse for its delay in bringing forth their initial motion for summary judgment; and, thus, their motion was denied as being untimely. The untimely cross-motion brought by defendant Ibrahim cannot be considered since defendants' motion for summary judgment was made on identical grounds and was deemed untimely.
In addition, it is clear, based on defendants' reply affirmation, that defendants knew that their motion for summary judgment had been made more than 120 days after the note of issue was filed and had subsequently filed a petition for leave to file their motion for summary judgment
, and that defendants failed to appear on February 22, 2012 to move for permission to file a late motion for summary judgment. However, defendant Ibrahim chose to adopt and to incorporate what defendants had set forth in their initial motion on December 23, 2011 without asserting a showing of “good cause” as to why the defendant Ibrahim's cross-motion was made untimely. Therefore, the cross-motion brought by defendant Ibrahim is denied in its entirety as untimely for the failure to demonstrate “good cause” for its delay to bring forth its cross-motion before the 120–day statutory deadline.
In any event, the defendants had put the cart before the horse by filing the late summary judgment motion and subsequent thereto, requesting permission to file a late summary judgment motion.
The appropriate remedy for a failure to satisfy the 120–day statutory deadline is to return the case to the trial calendar, “where a motion to dismiss after plaintiff[s] rest[ ] or a request for a directed verdict may dispose of the case during the trial.” (Brill, 2 NY3d at 653.)
Conclusion
For the reasons set forth above, the defendants' motion and defendant Ibrahim's cross-motion for summary judgment are denied in their entirety as untimely.
This constitutes the decision and order of this court.