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Diamond Thomas, An Infant Under the Age of Fourteen (14) By His Mother and Natural Guardian Carlita Thomas and Carlita Thomas Individually, Brion Erby v. Geza M. Gyorok and Chirianjib Nath

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts


March 20, 2013

DIAMOND THOMAS, AN INFANT UNDER THE AGE OF FOURTEEN (14) BY HIS MOTHER AND NATURAL GUARDIAN CARLITA THOMAS AND CARLITA THOMAS INDIVIDUALLY, BRION ERBY,
AN INFANT UNDER THE AGE OF FOURTEEN (14) BY HIS MOTHER AND NATURAL GUARDIAN CARLITA THOMAS AND CARLITA THOMAS INDIVIDUALLY, JOHNIECE ERBY, CARLITA
THOMAS, MEAGAN HENRIQUEZ, AN INFANT UNDER THE AGE OF FOURTEEN (14) BY HER MOTHER AND NATURAL GUARDIAN LIZETTE HENRIQUEZ AND LIZETTE HENRIQUEZ, INDIVIDUALLY, RESPONDENTS, --
v.
GEZA M. GYOROK AND CHIRIANJIB NATH, APPELLANTS.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 12, 2011.

Thomas v Gyorok

Decided on March 20, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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: RIOS, J.P., PESCE and ALIOTTA, JJ

The order, insofar as appealed from, denied, as untimely, defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the matter is remitted to the Civil Court for a determination of the merits of defendants' motion for summary judgment dismissing the complaint.

In this action to recover for personal injuries allegedly sustained in a motor vehicle accident, insofar as is relevant to this appeal, defendants moved for summary judgment dismissing the complaint, and plaintiffs opposed the motion. Defendants appeal from so much of an order of the Civil Court entered July 12, 2011 as denied their motion as untimely. The court found that defendants had not demonstrated good cause for failing to make their motion within 120 days of the filing of the notice of trial.

Contrary to the determination of the Civil Court, defendants demonstrated "good cause" for the late filing of their motion for summary judgment (see CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648 [2004]) by showing that the notice of trial had been filed while there was significant discovery outstanding (see Kung v Zheng, 73 AD3d 862 [2010]; Abdalla v Mazl Taxi, Inc., 66 AD3d 803 [2009]; McArdle v 123 Jackpot, Inc., 51 AD3d 743 [2008]; Sclafani v Washington Mut., 36 AD3d 682 [2007]; Kunz v Gleeson, 9 AD3d 480 [2004]). Consequently, defendants' motion for summary judgment should not have been denied as untimely. The matter is therefore remitted to the Civil Court for a determination of the merits of the motion.

Accordingly, the order, insofar as appealed from, is reversed and the matter is remitted to the Civil Court for a determination of the merits of defendants' motion for summary judgment dismissing the complaint.

Rios, J.P., Pesce and Aliotta, JJ., concur. Decision Date: March 20, 2013

20130320

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