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Margaret Shields v. Central Veterinary Associates

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS


June 27, 2012

MARGARET SHIELDS,
APPELLANT, --
v.
CENTRAL VETERINARY ASSOCIATES, RESPONDENT.

Appeal from an order of the District Court of Nassau County, First District (Fred J. Hirsh, J.), dated March 11, 2011.

Shields v Central Veterinary Assoc.

Decided on June 27, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: MOLIA, J.P., IANNACCI and LaSALLE, JJ

The order granted defendant's renewed motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

In this action for breach of contract and veterinary malpractice arising out of defendant's allegedly improper treatment of plaintiff's dog, Sheba, plaintiff filed a notice of trial and certificate of readiness on October 20, 2009. Defendant moved for summary judgment dismissing the complaint on December 28, 2009. Plaintiff cross-moved to strike defendant's answer, pursuant to CPLR 3126, based on defendant's failure to provide its entire treatment record for Sheba, dating from June 2000, when Sheba was initially treated by defendant, until February 2008, when Sheba died following an ongoing illness or, in the alternative, to compel defendant to provide such record. Defendant, in reply, acknowledged that it had not previously provided plaintiff with the entire treatment record, due to law office failure, and averred that it had now done so, annexing the record to its reply. By order dated June 11, 2010, the District Court denied plaintiff's cross motion as academic, and denied "without prejudice" defendant's motion for summary judgment, based on CPLR 3212 (f).

On September 2, 2010, defendant again moved for summary judgment dismissing the complaint, on grounds virtually identical to those asserted in its first motion for summary judgment. Plaintiff opposed defendant's motion, essentially on the ground that it had been made more than 120 days after the notice of trial had been filed (see CPLR 3212 [a]) and was therefore untimely. By order dated March 11, 2011, the District Court granted defendant's motion for summary judgment dismissing the complaint, upon a finding that the motion had been timely made. On appeal, plaintiff's sole contention is that defendant's summary judgment motion was untimely and, thus, should have been denied.

As noted in Brill v City of New York (2 NY3d 648, 652 [2004]), the time requirements of CPLR 3212 (a) were intended to address and end "the practice of eleventh-hour summary judgment motions." In the instant case, it is undisputed that defendant made its initial summary judgment motion in a timely manner. In its June 11, 2010 order, the District Court denied defendant's timely summary judgment motion "without prejudice," in effect, granting defendant leave to renew within a reasonable time, since plaintiff was now in possession of the material which, she claimed, was necessary for her to oppose defendant's motion. Under the circumstances of this case, we find that the District Court did not improvidently exercise its discretion in entertaining defendant's renewed motion for summary judgment (see e.g. Conte v Servisair/Globeground, 63 AD3d 981 [2009]; Government Employees Ins. Co. v Desiderio, 104 AD2d 791 [1984]). As plaintiff has raised no issue on appeal regarding the District Court's determination of the merits of defendant's renewed summary judgment motion, we do not address them.

Accordingly, the order is affirmed.

Molia, J.P., Iannacci and LaSalle, JJ., concur.

Decision Date: June 27, 2012

20120627

© 1992-2012 VersusLaw Inc.



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