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Rivera v. City of New York

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


May 4, 2010

JUANA RIVERA, PLAINTIFF-APPELLANT,
v.
THE CITY OF NEW YORK, DEFENDANT-RESPONDENT.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered March 13, 2009, which, in an action for personal injuries, insofar as appealed from as limited by the briefs, granted defendant's cross motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, defendant's cross motion denied, and the matter remanded for further proceedings.

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.

Gonzalez, P.J., Tom, Renwick, DeGrasse, Abdus-Salaam, JJ.

29382/02

Defendant's cross motion for summary judgment, which was made in response to a motion by plaintiff characterized by the motion court as one to restore the action to the calendar, should have been denied as untimely, as defendant failed to show good cause for making the cross motion more than 120 days after the filing of the note of issue (CPLR 3212[a]; Brill v City of New York, 2 NY3d 648, 652 [2004]). At least where, as here, the 120-day time limit had expired before the case was struck from the calendar, we reject defendant's argument that the 120-day limit does not apply to cases that have been struck from the calendar. We note Brill's express prohibition against consideration of unexcused, untimely motions no matter how meritorious or non-prejudicial (id. at 653, especially n 4; see Perini Corp. v City of New York, 16 AD3d 37, 39-40 [2005]).

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

20100504

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