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Kristin Richman v. Obiakor Obstetrics & Gynecology

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


July 28, 2011

KRISTIN RICHMAN,
RESPONDENT,
v.
OBIAKOR OBSTETRICS & GYNECOLOGY, P.C.,
APPELLANT.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Lila P. Gold, J.), entered December 19, 2007. The judgment, entered pursuant to an order granting plaintiff's motion for summary judgment, awarded plaintiff the total sum of $21,384.

Richman v Obiakor Obstetrics & Gynecology, P.C.

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 28, 2011

PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ

ORDERED that the judgment is reversed, without costs, the order granting plaintiff's motion for summary judgment is vacated and plaintiff's motion for summary judgment is denied.

In this action for breach of contract, plaintiff moved for summary judgment and defendant opposed the motion. After oral argument, the Civil Court granted plaintiff's motion, and a judgment was subsequently entered pursuant to the order.

It was improper for the Civil Court to consider plaintiff's untimely motion for summary judgment in the absence of a showing by plaintiff of good cause for not serving the motion within 120 days of the filing of the notice of trial, the Civil Court equivalent of a note of issue (see Chimbay v Palma, 14 Misc 3d 130[A], 2007 NY Slip Op 50019[U] [App Term, 2d & 11th Jud Dists 2007]), as required by CPLR 3212 (a) (see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]; Brill v City of New York, 2 NY3d 648 [2004]; John P. Krupski & Bros., Inc. v Town Bd. of Town of Southold, 54 AD3d 899 [2008]; Glasser v Abramovitz, 37 AD3d 194 [2007]; Chung v Rozenthal, 29 AD3d 849 [2006]). In the absence of such a showing, the Civil Court has no discretion to entertain even a meritorious, non-prejudicial motion for summary judgment (see Brill, 2 NY3d at 652). Thus, plaintiff's motion should have been denied as untimely.

Accordingly, the judgment is reversed, the order granting plaintiff's motion for summary judgment is vacated and plaintiff's motion is denied.

Pesce, P.J., Golia and Steinhardt, JJ., concur.

Decision Date: July 28, 2011

20110728

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