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Joson v. G & S Realty 1

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


December 22, 2009

ADELINA JOSON, ET AL., PLAINTIFFS-RESPONDENTS,
v.
G & S REALTY 1, LLC, ET AL., DEFENDANTS-RESPONDENTS, TPD CONSTRUCTION CORP., APPELLANT.

In an action to recover damages for personal injuries, etc., the defendant TPD Construction Corp. appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Hurkin-Torres, J.), dated January 22, 2009, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

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.

JOSEPH COVELLO, J.P., FRED T. SANTUCCI, CHERYL E. CHAMBERS and L. PRISCILLA HALL, JJ.

(Index No. 40944/04)

DECISION & ORDER

ORDERED that the order is affirmed insofar as appealed from, with costs.

Generally, unless a trial court specifies otherwise, a party has 120 days after the filing of a note of issue to move for summary judgment, after which it may do so only with "leave of court on good cause shown" (CPLR 3212[a]). This "requires a showing of good cause for the delay in making the motion--a satisfactory explanation for the untimeliness--rather than simply permitting meritorious, non-prejudicial filings, however tardy" (Brill v City of New York, 2 NY3d 648, 652). A trial court has discretion in determining whether to consider a motion for summary judgment made more than 120 days after the filing of a note of issue (see CPLR 3212[a]; Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124, 129).

Here, the trial court providently exercised its discretion in denying the motion of the defendant TPD Construction Corp. for summary judgment dismissing the complaint and all cross claims insofar as asserted against it because it failed to timely file its motion (see CPLR 3212[a]; Brill v City of New York, 2 NY3d at 652; Gonzalez v 98 Mag Leasing Corp., 95 NY2d at 129).

COVELLO, J.P., SANTUCCI, CHAMBERS and HALL, JJ., concur.

20091222

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