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Madison Third Building Companies, LLC v. Berkey

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


July 7, 2009

MADISON THIRD BUILDING COMPANIES, LLC, ETC., PLAINTIFF-RESPONDENT,
v.
DAVID BERKEY, ET AL., DEFENDANTS-APPELLANTS.

Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered July 17, 2008, which denied defendants' motion for summary judgment dismissing the complaint as untimely, unanimously reversed, on the law and the facts, without costs, and the matter remanded to Supreme Court to decide defendants' motion on its merits.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Andrias, J.P., Saxe, Acosta, Renwick, JJ.

603999/04

Inasmuch as defendants' attorney reasonably interpreted a court attorney's oral directive at a post-note of issue conference that summary judgment motions "be made in accordance with the CPLR," to mean that the time to make a summary judgment motion had been extended from the 45 day deadline set in two pre-note of issue conference orders to the 120-day outer limit permitted by CPLR 3212(a), such excuse was reasonable under the circumstances and the motion should have been considered on its merits. M-1155 - Madison Third Building Companies, LLC v David Berkey, et al. Motion seeking a stay of trial pending appeal dismissed, as moot.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090707

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