Rafael Chevere, Individually and as Administrator of the Estate of Manuela Chevere, Deceased, Plaintiff,
Hyundai Motor Company et al., Defendants.
Harris Beach & Wilcox, L. L. P., New York City (Howard A. Fried of counsel), for Hyundai Motor Company, defendant.
Lipsig, Shapey, Manus & Moverman, P. C., New York City (Allan
M. Shapey of counsel), and Patrick Colligan, Harrison (Charles C. Keeney, Jr., of counsel), for plaintiff.
Joseph N. Giamboi, J.
Motion by defendant Hyundai Motor Company, also known as Hyundai Motor America and Bronx Auto Mall, Inc. (cumulatively Hyundai), for an extension of the 120-day time limit for the bringing of a summary judgment motion pursuant to CPLR 3212 and for partial summary judgment dismissing claims and causes of action relating to the lack of an air bag in the vehicle at issue, and to strike plaintiff's note of issue based upon plaintiff's alleged failure to comply with orders and demands for discovery, and plaintiff's cross motion are consolidated.
Plaintiff sues to recover for injuries suffered as the result of an automobile accident which occurred at approximately 1:00 P.M . on or about June 16, 1995. Plaintiff administrator Rafael Chevere was the owner/driver of a 1993 Hyundai Sonata automobile going north on Southern Boulevard, Bronx County. At the intersection of Southern Boulevard and East 180th Street, the Hyundai was struck by a 1980 Chrysler LeBaron being driven by codefendant Ricardo Lugo.  Manuela Chevere, wife of the driver Rafael, was in the front passenger seat and Augustine Navado was riding in the Hyundai's rear passenger seat.
All three passengers in the Hyundai sustained injuries as a result of the collision. Manuela Chevere was removed to Jacobi Hospital where she died of her injuries. At the time of this accident, Manuela Chevere was secured into the vehicle only with the automatic shoulder harness and was not wearing the lap-type seat belt installed into the automobile.
This action was instituted on or about March 7, 1996. Plaintiff served the present note of issue and certificate of readiness on or about June 28, 1999.  Pursuant to CPLR 3212 (a), a motion for summary judgment is to be made within 120 days of the service of note of issue. This would set the outside date for filing such a motion as October 29, 1999. Hyundai now
requests an extension of the 120-day rule based on the language contained in CPLR 3212 allowing for such exception " with the leave of the court on good cause shown."
As basis for this " good cause," Hyundai refers the Court to the timing and content of the decision of the Supreme Court of the United States in Geier v American Honda Motor Co. (529 U.S. 861), promulgated by the High Court on May 22, 2000.
The Geier case involved a claim brought by owner/motorist Alex Geier, who sustained injuries when he collided his 1987 Honda Accord into a tree. He contended that auto manufacturer, Honda, was negligent in failing to equip his automobile with a driver's side air bag. It was conceded there that the auto as designed contained a three-point seat restraint safety system. It was further found by the Supreme Court that the 1984 Federal Motor Vehicle Safety Standards (FMVSS), promulgated by the United States Department of Transportation under the authority of the National Traffic and Motor Vehicle Safety Act of ...