Wenick & Finger, P.C., New York (Frank J. Wenick of counsel), for appellant.
Richard J. Katz, LLP, New York (Jonathan A. Rapport of counsel), for respondents.
Gonzalez, P.J., Sweeny, Richter, Clark, JJ.
Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered January 8, 2013, which, to the extent appealed from, denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
We affirm the order denying summary judgment on the alternate ground that the motion for summary judgment, made more than fifteen months after the filing of the note of issue, was untimely (see CPLR 3212[a]; Miceli v State Farm Mut. Auto. Ins. Co., 3 N.Y.3d 725 ). Defendant's purported excuse for the late motion — that a CD of an MRI, which had been lost, was found shortly before defendant made the motion — is inadequate. The parties agreed on the MRI's findings of a hip fracture, which were documented in other medical records, including an operative report. While the MRI was relied on by the parties' experts, it was not necessary for defendant's motion and the case could have proceeded to trial without that evidence.
In any event, were we to reach the merits, we would find that the court properly denied defendant's motion. Defendant's motion papers failed to respond to a number of specific allegations of negligence asserted in the bill of particulars, including the central claim concerning the failure of its nurse to reposition the guardrails on the decedent's bed so as to prevent a fall (see Brosnan v Shafron, 278 A.D.2d 442 [2d Dept 2000]). Further, even if defendant's motion papers were sufficient, plaintiff's evidence raised triable issues of fact as to whether defendant departed from the prevailing standards ...