& Silber, P.C., New York (Eldar Mayouhas of counsel), for
Frederick D. Rutkovsky, M.D., appellant.
Kaufman Borgeest & Ryan LLP, Valhalla (David A. Beatty of
counsel), for LHHN Medical, P.C. and Lenox Hill Community
Medical Group, P.C., appellants.
Offices of Annette Hasapidis, White Plains (Annette G.
Hasapidis of counsel), for respondent.
J.P., Moskowitz, Gische, Kapnick, JJ.
Supreme Court, New York County (Joan B. Lobis, J.), entered
on or about April 21, 2015, which denied defendants'
motions for summary judgment as untimely, affirmed, without
costs. Appeals from order, same court and Justice, entered
April 18, 2016, which, upon effectively granting
defendants' motions for reargument, adhered to the prior
order, dismissed, without costs, as academic.
medical malpractice action, plaintiff claimed to have
suffered injuries as a result of negligent care she received
from defendant Frederick D. Rutkovsky, M.D., plaintiff's
primary care physician, and, vicariously, from defendant LHHN
Medical P.C . Specifically, plaintiff alleged that
Dr. Rutkovsky failed to detect, diagnose, and treat a
meningioma (that is, a benign brain tumor) from on or about
April 3, 1998 until September 5, 2007. In support of her
allegations, plaintiff asserted that Dr. Rutkovsky
"ignored" her repeated complaints of migraine
headaches, blurred vision, and other related symptoms.
Plaintiff ultimately underwent a left frontal parasagittal
craniotomy and suffered a loss of vision rendering her
legally blind. By complaint dated March 5, 2010, plaintiff
commenced this action against LHHN Medical, P.C., and Lenox
Hill Community Medical Group, P.C. (together LHHN) and Dr.
Rutkovsky, alleging medical malpractice and lack of informed
order to show cause filed with the County Clerk's office
on January 23, 2015 and dated January 28, 2015, LHHN moved
for summary judgment. On the motion, LHHN asserted that
plaintiff's malpractice claims were time-barred, as she
had commenced the action on March 5, 2010, more than two and
one-half years after her last appointment with Dr. Rutkovsky
at LHHN on September 5, 2007. LHHN further contended,
preemptively, that plaintiff's care did not fall within
the continuous treatment exception to the statute of
limitations because she was not involved in a continuous
course of treatment related to her headaches. Dr. Rutkovsky
moved separately for summary judgment, filing his order to
show cause on January 26, 2015. Like LHHN, Dr. Rutkovsky
asserted that plaintiff's claims for treatment before
September 5, 2007 were time-barred. Dr. Rutkovsky also
asserted that plaintiff's informed consent claim should
be dismissed, since plaintiff's allegations did not
involve an invasive diagnostic procedure.
opposition, plaintiff asserted that defendants' motions
could not be entertained because they were untimely.
Plaintiff noted that the court's part rules, as set forth
in the Preliminary Conference Order, stated that
"[m]otions for Summary Judgment and/or other dispositive
motions shall be made no later than 60 (sixty) days from the
filing of the Note of Issue, unless the Court directs
otherwise."  Therefore, plaintiff concluded,
because the note of issue was filed on November 25, 2014, all
dispositive motions were to be made no later than January 26,
also opposed defendants' motions on the merits, opining
by way of expert affidavits that defendants' actions had
constituted deviations from the applicable standard of care.
With respect to the statute of limitations, plaintiff argued
that her visits from March 1999, when she first complained of
headaches to Dr. Rutkovsky, to February 5, 2007, fell under
the "continuous treatment" doctrine, and thus, that
the doctrine should apply to toll the statute of limitations.
Rutkovsky and LHHN argued that their motions were timely
because, among other things, on the day they filed their
OSCs, court closed early because of Winter Storm Juno, a
major storm, and was also closed the following day. The court
closings, they argued, led to the delay in obtaining the
court's signature on the orders. Nonetheless, defendants
argued that they timely filed their OSCs with the court in
good faith and within the 60- day time limit, and that the
inclement weather contributed to the delay in obtaining the
court's signature on the order.
its decision on its part rules requiring that post note of
issue dispositive motions must be made no later than 60 days
after the filing of the note of issue, the court found
defendants' motions for summary judgment to be untimely.
The court rejected defendants' argument that the
court's setting of a service and return date constituted
approval of the late motion. Rather, the court found the
motions to be untimely, as neither party made its motion for
summary judgment by January 26, 2015, and, according to the
court, neither movant addressed the issue of good cause,
which the court could not consider sua sponte. The court
accordingly denied defendants' motions without addressing
begin, as a procedural matter, we may properly consider
defendants' appeal from the order denying their motion to
reargue. In general, an order denying a motion for reargument
is not appealable (see e.g. Kitchen v Crotona Park W.
Hous. Dev. Fund Corp., 145 A.D.3d 521');">145 A.D.3d 521 [1st Dept 2016]).
Here, however, although the motion court purported to deny
the motion to reargue, it nonetheless considered the merits
of defendants' argument that the inclement weather on the
motion's due date provided good cause for the delay. As a
result, the court, in effect, granted reargument, then
adhered to the original decision (see Matter of 1234
Broadway, LLC v New York State Div. of Hous. & Community
Renewal, 102 A.D.3d 628, 629 [1st Dept 2013]). The April
18, 2016 order is therefore appealable (id.).
now to the merits of this appeal, we find that the motion
court improvidently exercised its discretion in finding that
the motions were untimely and declining to consider them on
that basis. Under CPLR 3212(a), a motion for summary judgment
must be made within 120 days of the filing of the note of
issue. So long as it is within that time period, the court
may set forth its own deadline, in which case the court's
directive controls (see McFadden v 530 Fifth Ave. RPS III
Assoc., LP, 28 A.D.3d 202, 202-203 [1st Dept 2006]).
Accordingly, when a motion for summary judgment is untimely,
the movant must show good cause for the delay; otherwise the
late motion will not be addressed (see Andron v City of
New York, 117 A.D.3d 526');">117 A.D.3d 526 [1st Dept 2014]). Further, a
court has broad discretion in determining whether the moving
party has established good cause for the delay, and its
determination will not be overturned unless it is improvident
(see Gonzalez v 98 Mag Leasing Corp., 95 N.Y.2d 124,
Rutkovsky filed his OSC with the clerk's office on
January 26, 2015; the court signed it on January 29, 2015 and
Dr. Rutkovsky served it on January 30, 2015. Likewise, LHHN
filed its OSC on January 23, 2015; the court signed it on
January 28, 2015 and LHHN served it on February 2, 2015. No
party disputes that, on the day the orders would usually have
been processed and timely signed, inclement weather from
Winter Storm Juno created a "state of emergency"
and caused the ...