Opinion
304130/2015
07-16-2018
Brandon CINTRON, Plaintiff, v. 1020 THIRD AVENUE ASSOCIATES and Rudd Realty Management Corp., Defendants.
Plaintiff's counsel: Rosenberg, Minc, Folkoff & Wolff (Dan Minc, Esq.) Defendants' counsel: Goldberg & Carlton, PLLC (Michael S. Leyden, Esq.)
Plaintiff's counsel: Rosenberg, Minc, Folkoff & Wolff (Dan Minc, Esq.)
Defendants' counsel: Goldberg & Carlton, PLLC (Michael S. Leyden, Esq.)
John R. Higgitt, J.
In this negligence action demanding damages for personal injuries plaintiff allegedly sustained in a building owned by defendant 1020 Third Avenue Associates and managed by defendant Rudd Realty Management Corp., defendants seek an extension of the time within which to make a summary judgment motion. By a separate, subsequent motion, defendants seek summary judgment dismissing the complaint. For the reasons that follow, both motions are denied.
By an order (Johnson, J.), dated June 28, 2018, these motions and the underlying action were referred to part 14.
Plaintiff commenced this action on September 29, 2015. Issue was joined by defendants and disclosure proceedings were undertaken. On or about November 9, 2016, plaintiff served on defendants a CPLR 3101(d)(1)(i) expert statement, noticing an expert in the field of building inspection. A note of issue and certificate of readiness were filed by plaintiff on November 15, 2016. Because the note of issue was filed on November 15, 2016, the deadline for summary judgment motions was March 15, 2017.
CPLR 3101(d)(1)(i) states, in pertinent part, that, "[u]pon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert's opinion."
By a motion made on March 7, 2017 (see CPLR 2211 ), defendants seek an extension of the time within which to make a summary judgment motion; essentially, defendants want a determination that "good cause" exists under CPLR 3212(a) to support a late motion. Defendants argue that "plaintiff did not serve a 3101(d) expert exchange until on or about November 9, 2016, just days prior to the note of issue filing. The defendants have retained their own expert to respond in this regard, said expert now being necessary to any successful summary judgment motion" (affirmation in support at ¶ 8). Defendants assert that their expert could not prepare an affidavit in time to make a timely summary judgment motion, and a 60-dayextension is warranted. Defendants also assert that plaintiff will not be prejudiced by the granting of the requested extension. In support of their motion, defendants submit the affirmation of their counsel, a copy of the note of issue and certificate of readiness, and a copy of plaintiff's expert's report, which was served with the CPLR 3101(d)(1)(i) statement.
Plaintiff opposes the motion, arguing that defendants failed to demonstrate "good cause" as that phrase was interpreted by the Court of Appeals in Brill v. City of New York, 2 N.Y.3d 648, 781 N.Y.S.2d 261, 814 N.E.2d 431 [2004], and that defendants' "own failure to timely retain an expert cannot serve as a basis for good cause" (affirmation in opp. at p 2).
CPLR 3212(a) provides that:
"the court may set a date after which no summary judgment motion may be made, such date being no earlier than thirty days after the filing of the note of
issue. If no such date is set by the court, such motion shall be made no later than one hundred and twenty days after the filing of the note of issue, except with leave of court on good cause shown."
In Brill , the Court of Appeals held that good cause under CPLR 3212(a)"requires a showing of good cause for the delay in making the motion — a satisfactory explanation for the untimeliness — rather than simply permitting meritorious, nonprejudicial filings, however tardy" ( 2 N.Y.3d at 654, 781 N.Y.S.2d 261, 814 N.E.2d 431 ).
Here, defendants offer the following excuse: plaintiff served the CPLR 3101(d)(1)(i) expert statement around the time he filed the note of issue; defendants, in turn, retained an expert to respond to plaintiff's expert; and defendants' expert could not prepare an affidavit in time for defendants to make a timely summary judgment motion. This excuse is not persuasive. First, as the party seeking summary judgment, defendants would have the burden of making a prima facie showing of entitlement to judgment as a matter of law (see Voss v. Netherlands Insurance Co. , 22 N.Y.3d 728, 985 N.Y.S.2d 448, 8 N.E.3d 823 [2014] ). To discharge that burden, defendants would have to make an affirmative showing of their entitlement to summary judgment with evidence in admissible form (see Yun Tung Chow v. Reckitt & Colman, Inc. , 17 N.Y.3d 29, 926 N.Y.S.2d 377, 950 N.E.2d 113 [2011] ); neither pointing to potential gaps in plaintiff's evidence nor asserting that plaintiff would not be able to make out a prima facie case at trial is sufficient to discharge the summary judgment burden (see Hairston v. Liberty Behavioral Management Corp. , 157 A.D.3d 404, 68 N.Y.S.3d 439 [1st Dept. 2018] ; see also Vargas v. Riverbay Corp. , 157 A.D.3d 642, 67 N.Y.S.3d 467 [1st Dept. 2018] ). Therefore, defendants had to be prepared to muster their summary judgment proof (expert and otherwise) before the CPLR 3212(a) deadline regardless of whether plaintiff served his CPLR 3101(d)(1)(i) statement at or near the time of the filing of the note of issue. The court notes that defendants have not argued (let alone demonstrated) that plaintiff's expert's opinions support theories of liability that differ from the ones plaintiff has pursued during this litigation.
Of course, plaintiff was not obligated to serve the CPLR 3101(d)(1)(i) expert statement prior to the filing of the note of issue (see CPLR 3212 ; "Where an expert affidavit is submitted in support of, or opposition to, a motion for summary judgment, the court shall not decline to consider the affidavit because an expert exchange pursuant to CPLR 3101(d)(1)(i) ; was not furnished prior to the submission of the affidavit." see also CPLR 3101 ; "where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert's testimony at the trial solely on grounds of noncompliance with this paragraph").
Second, defendants' assertion that their expert could not prepare an affidavit in time for them to make a timely summary judgment motion is supported only by their attorney's affirmation. No affidavit from defendants' expert was submitted explaining why he could not prepare an affidavit in time for defendants to make a timely summary judgment motion. Defendants' attorney was not in a position to explain satisfactorily why the expert was not able to prepare an affidavit in time for defendants to make a summary judgment motion within 120 days of the filing of the note of issue. In any event, defendants' attorney offers only a conclusory statement that "[t]he defendants' expert engineer c[ould not] have his responding report ready prior to March 15, 2017 [e.g., the deadline for summary judgment motions]" (affirmation in support at ¶ 9).
Because defendants failed to demonstrate good cause for a late summary judgment motion, their separate motion seeking summary judgment dismissing the complaint is denied.
Accordingly, it is hereby ORDERED that defendants' motion seeking an extension of time to make a summary judgment motion is denied; and it is further,
ORDERED that defendants' motion seeking summary judgment is denied.
This constitutes the decision and order of the court.