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Fequiere v. Bgt Inc.

Other Lower Courts

January 14, 2008

Norma Fequiere, Plaintiff,
v.
BGT Inc., et al., Defendant.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

COUNSEL

Plaintiff Attorney: Shapiro Beilly Rsenberg.

Defense Attorney: James G. Bilello Associates, Baker, McEvoy, Morrissey Mos.

OPINION

Yvonne Lewis, J.

The plaintiff, Norma Fequiere, (plaintiff) moves to recover damages for personal injuries in a motor vehicle accident, defendants Cheryl A. Morrison (Morrison) and Mark Tony Nicholas (Nicholas) move, pursuant to CPLR 2221, for leave to reargue their prior motion for summary judgment in their favor on the issue of liability, and, in the event that such leave to reargue is granted, for an order granting them summary judgment dismissing plaintiff's complaint as against them.

This action arises out of a motor vehicle accident, which occurred on September 8, 2003 on Ralph Avenue at or near its intersection with Clarendon Road, in Brooklyn, New York. Plaintiff was a passenger in a vehicle driven by defendant Angel Ortiz which was involved in the collision with a vehicle owned by Morrison and operated by Nicholas.

Plaintiff filed the note of issue in this action on December 1, 2006. Morrison and Nicholas assert that plaintiff's note of issue was received by them on December 8, 2006 (seven days later). Pursuant to CPLR 2211, a motion is made when the notice of motion is served. Morrison and Nicholas assert that their notice of motion for summary judgment was served on plaintiff on February 13, 2007. The records of the Kings County Clerk's Office reflect that Morrison and Nicholas' motion for summary judgment was filed on February 16, 2007.

CPLR 3212 (a) provides that the court may set a date after which no summary judgment may be made as long as it is no earlier than 30 days after the filing of the note of issue. In accordance with this statute, Kings County Supreme Court Uniform Civil Term Rule 13, in pertinent part, provides:

"13. Post Note of Issue Summary Judgment Motions: . . . No motion for summary judgment may be made more than 60 days after filing a Note of Issue in all . . . cases [other than where the defendant is the City of New York], except with leave of the Court on good cause shown. See, CPLR 3212 (a)" (emphasis added).

By order dated May 18, 2007 and filed on May 22, 2007, this court denied Morrison and Nicholas' motion for summary judgment based upon the ground that pursuant to Kings County Supreme Court Uniform Civil Term Rule 13, it was untimely and no good cause was shown by Morrison and Nicholas to warrant leave of the court to entertain their tardy motion. Morrison and Nicholas now seek leave to reargue their motion.

The purpose of a motion for reargument is to afford a party an opportunity to demonstrate that the court overlooked or misrepresented the law or facts pertinent to the original motion ( see CPLR 2221 [d][2]; Andrea v du Pontde Nemours Co., 289 A.D.2d 1039, 1040-1041 [2001]; Foley v Roche, 68 A.D.2d 558, 567 [1979]; American Trading Co. v Fish, 87 Misc.2d 193, 195 [1975]). "Its purpose is not to serve as a vehicle to permit the unsuccessful party to reargue once again the very questions previously decided" (Foley, 68 A.D.2d at 567; see also William P. Pahl Equip. Corp. v Kassis, 182 A.D.2d 22, 27 [1992]; Bankers Trust Co. of Cal. v Payne, 188 Misc.2d 726, 729 [2001]; Ulster Sav. Bank v Goldman, 183 Misc.2d 893, 894 [2000]; American Trading Co., 87 Misc.2d at 195).

In support of their motion, Morrison and Nicholas now argue that although plaintiff's note of issue was filed on December 1, 2006, the fact that they did not receive the note of issue until December 8, 2006 constitutes good cause for their late service of their summary judgment motion. It is true that a note of issue must be served on the other parties as well as being filed. Pursuant to CPLR 3402 (a), for purposes of placing a case on the trial calendar, a note of issue is filed "within ten days after service, with proof of such service." Thus, "CPLR 3402 . . . assumes that service of the note of ...


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