Opinion
2017-02283 Index No. 17522/08
06-19-2019
BARGIL ASSOCIATES, LLC, Appellant, v. Elsa CRITES, etc., Respondent.
Michael B. Schulman & Associates, P.C., Melville, NY, for appellant. Abrams, Gorelick, Friedman & Jacobson, LLP, New York, N.Y. (Steven DiSiervi of counsel), for respondent.
Michael B. Schulman & Associates, P.C., Melville, NY, for appellant.
Abrams, Gorelick, Friedman & Jacobson, LLP, New York, N.Y. (Steven DiSiervi of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.
DECISION & ORDER In an action, inter alia, for a judgment declaring the parties' respective rights under a certain contract dated August 8, 2007, the plaintiff appeals from an order of the Supreme Court, Nassau County (Sharon M.J. Gianelli, J.), entered February 8, 2017. The order denied the plaintiff's motion for summary judgment on the complaint and striking the defendant's answer.
ORDERED that the order is affirmed, with costs.
The underlying facts for this action may be found in our decisions and orders in a prior related appeal, Bargil Assoc., LLC v. Crites , 135 A.D.3d 676, 24 N.Y.S.3d 119, and in a related appeal decided herewith, Bargil Assoc., LLC v. Crites , 173 A.D.3d 956, 100 N.Y.S.3d 898, 2019 WL 2519045 (Appellate Division Docket No. 2016–11252). Following the completion of discovery, the plaintiff filed a note of issue in October 2011. Approximately five years later, the plaintiff moved for summary judgment on the complaint and striking the defendant's answer. The Supreme Court denied the motion as untimely. The plaintiff appeals, and we affirm.
Motions for summary judgment "shall be made no later than one hundred twenty days after the filing of the note of issue" ( CPLR 3212[a] ) unless the Supreme Court has set a different deadline. A party may not file a late summary judgment motion without leave of the court "on good cause shown" ( CPLR 3212[a] ), which requires the movant to articulate a "satisfactory explanation for the untimeliness" of the motion ( Brill v. City of New York, 2 N.Y.3d 648, 652, 781 N.Y.S.2d 261, 814 N.E.2d 431 ; see Milano v. George, 17 A.D.3d 644, 645, 792 N.Y.S.2d 906 ). "In the absence of a showing of good cause for the delay in filing a motion for summary judgment, the court has no discretion to entertain even a meritorious, nonprejudicial motion for summary judgment" ( Bivona v. Bob's Discount Furniture of N.Y., LLC, 90 A.D.3d 796, 796, 935 N.Y.S.2d 605 [internal quotation marks omitted]; see Greenpoint Props., Inc. v. Carter, 82 A.D.3d 1157, 1158, 919 N.Y.S.2d 370 ).
Here, the plaintiff's motion was made almost five years after the 120–day deadline expired. The plaintiff failed to demonstrate, in its moving papers, good cause for not filing the motion in a timely manner, and only attempted to do so, improperly for the first time, in its reply papers (see Nationstar Mtge., LLC v. Weisblum, 143 A.D.3d 866, 869 ). Accordingly, we agree with the Supreme Court's determination denying, as untimely, the plaintiff's motion for summary judgment.
In light of our determination, we need not address the parties' remaining contentions.
LEVENTHAL, J.P., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.