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Maschi v. City of New York

Supreme Court of New York, First Department

October 8, 2013

Bruno Maschi, etc., Plaintiff-Appellant, The
v.
City of New York, Defendant-Respondent, Malik Armstead, et al., Defendants-Appellants.

Pollack, Pollack, Isaac & De Cicco, New York (Brian J. Isaac of counsel), for Bruno Maschi, appellant.

Morris Duffy Alonso & Faley, New York (Anna J. Ervolina of counsel), for Malik Armstead and Kim Armstead, appellants.

Michael A. Cardozo, Corporation Counsel, New York (Ronald E. Sternberg of counsel), for respondent.

Gonzalez, P.J., Mazzarelli, Andrias, DeGrasse, JJ.

Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered March 20, 2012, which granted defendant City of New York's motion for summary judgment, dismissing the complaint and cross claims against it, unanimously reversed, on the law, without costs, and the motion denied on the ground that it was untimely.

By order dated June 23, 2011, the motion court required that summary judgment motions be made, if at all, by October 12, 2011. It is undisputed that defendant's motion was dated October 28, 2011. Accordingly, it was untimely (see CPLR 3212[a]; see Brill v City of New York, 2 N.Y.3d 648, 653-654 [2004]). Defendant's excuse for filing a tardy motion -— that counsel was on trial in another case -— does not satisfy the "good cause" requirement (CPLR 3212[a]) inasmuch as it is essentially an excuse of law office failure (see Fofana, 71 A.D.3d at 448; Azcona v Salem, 49 A.D.3d 343 [1st Dept 2008]; Breiding v Giladi, 15 A.D.3d 435 [2d Dept 2005]).Also unavailing is defendant's contention that plaintiff's failure to furnish it with the estate's tax return excuses its tardiness since the outstanding discovery is neither relevant nor necessary to the motion for summary judgment (see Filannino v Triborough Bridge & Tunnel Auth., 34 A.D.3d 280, 281 [1st Dept 2006]; Tower Ins. Co. of N.Y. v Razy Assoc., 37 A.D.3d 702, 703 [2d Dept 2007]).

In light of the foregoing, we need not reach the remaining arguments.


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