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Nisimova v. Starbucks Corp.

Supreme Court of New York, Second Department

July 3, 2013

Mazol Nisimova, respondent,
v.
Starbucks Corporation, et al., appellants. Index No. 9022/10

Heidell, Pittoni, Murphy & Bach, LLP, (Daniel S. Ratner of counsel), for appellants.

Serhiy Hoshovsky, New York, N.Y., for respondent.

RUTH C. BALKIN, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, ROBERT J. MILLER, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal (1) from an order of the Supreme Court, Queens County (Strauss, J.), entered May 1, 2012, which denied, as untimely, their motion for summary judgment dismissing the complaint, and (2), as limited by their brief, from so much of an order of the same court dated July 5, 2012, as, in effect, upon reargument, adhered to the original determination.

ORDERED that the appeal from the order entered May 1, 2012, is dismissed, as that order was superseded by the order dated July 5, 2012; and it is further,

ORDERED that the order dated July 5, 2012, is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The Supreme Court improvidently exercised its discretion in declining to entertain the defendants' motion for summary judgment dismissing the complaint (see CPLR 3212[a]; Brill v City of New York, 2 N.Y.3d 648, 652), inasmuch as the defendants established good cause for the delay in making the motion beyond the 120-day filing period (see Adika v Dramitinos, 74 A.D.3d 848, 849). Nevertheless, in the interest of judicial economy, we deem it appropriate, under the circumstances of this case, to address the motion on the merits, rather than remitting the matter to the Supreme Court to do so (see Ewers v Columbia Hgts. Realty, LLC, 44 A.D.3d 608, 609; Carreras v Weinreb, 33 A.D.3d 953, 954). We conclude that the Supreme Court should have denied the motion on the merits. Although the defendants established their prima facie entitlement to judgment as a matter of law, the plaintiff, in opposition, raised a triable issue of fact as to the applicability of the "storm in progress" rule (cf. Solazzo v New York City Tr. Auth., 6 N.Y.3d 734, 735; Mazzella v City of New York, 72 A.D.3d 755, 756; Powell v Cedar Manor Mut. Hous. Corp., 45 A.D.3d 749, 749-750).

BALKIN, J.P., HALL, LOTT and MILLER, JJ., concur.


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