Appeal from an order of the District Court of Nassau County, First District (Gary F. Knobel, J.), dated June 11, 2009. The order granted defendant's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
NICOLAI, P.J., TANENBAUM and LaCAVA, JJ
ORDERED that the order is reversed, without costs, and defendant's motion for summary judgment dismissing the complaint is denied.
Plaintiff entered into discussions with defendant Sunoco, Inc. (R & M) concerning the possibility of becoming the franchisee of a Sunoco gasoline station. The parties conducted separate negotiations as to the amount of incentive rebates defendant would pay plaintiff, and defendant sent plaintiff at least three different proposals for five-year contracts, which outlined terms that would govern the parties during their contractual relationship, including, among other things, the incentive rebates defendant would pay to plaintiff. One of the forms of incentive rebates the parties contemplated was "running consideration," pursuant to which defendant would pay plaintiff graduated levels of cash rebates based on the volume of gasoline sold. The amount of the cash rebates contemplated, and the schedule for payment of rebates, differed in each proposal. During the period of negotiations, which extended over at least 16 months, it appears that plaintiff operated the Sunoco gasoline station, and that defendant supplied the station with gasoline for purposes of resale. The parties did not, ultimately, enter into a long-term franchise arrangement, and plaintiff eventually ceased to operate the gasoline station as a Sunoco station. Plaintiff commenced this action to recover the principal sum of $15,000, the monetary jurisdictional limit of the court, which represented a portion of the running consideration payments allegedly due him for the period from July 16, 2001 through May, 2002.
On December 2, 2008, more than a year after plaintiff had filed his certificate of readiness for trial, and more than 120 days after the District Court had directed the clerk of the court to schedule the case for trial, defendant moved for summary judgment, alleging that, as the parties never had a contractual relationship, defendant had no duty to make running consideration payments to plaintiff. Plaintiff opposed defendant's motion on both procedural and substantive grounds, arguing that the motion was untimely under CPLR 3212 (a), and also arguing, in effect, that material issues of fact were presented.
Since defendant's motion was not made within 120 days either of the time when plaintiff filed his certificate of readiness for trial, or of the time when the District Court instructed the clerk to schedule the case for trial, and since defendant failed to show good cause for the lateness of its motion, we conclude that defendant's motion was untimely and that the District Court erred in entertaining it (see Chimbay v Palma, 14 Misc 3d 130[A], 2007 NY Slip Op 50019[U] [App Term, 2d & 11th Jud Dists 2007]; see also Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 ; Brill v City of New York, 2 NY3d 648 ).
We note that, in any event, in his opposition to defendant's summary judgment motion, plaintiff demonstrated that numerous material issues of fact exist as to whether plaintiff was entitled to running consideration' payments; this demonstration properly precluded an award of summary judgment to defendant.
Accordingly, the order of the District Court is reversed and defendant's motion for summary judgment dismissing the complaint is denied.
Nicolai, P.J., Tanenbaum and LaCava, ...