Opinion
2013-03-20
Palma GIAMBONA, etc., respondent, v. George L. HINES, etc., et al., defendants, Nicolas Raio, etc., appellant.
Aaronson, Rappaport, Feinstein & Deutsch, LLP, New York, N.Y. (Steven C. Mandell of counsel), for appellant. Duffy & Duffy, Uniondale, N.Y. (Brian C. Lockhart and James N. LiCalzi of counsel), for respondent.
Aaronson, Rappaport, Feinstein & Deutsch, LLP, New York, N.Y. (Steven C. Mandell of counsel), for appellant. Duffy & Duffy, Uniondale, N.Y. (Brian C. Lockhart and James N. LiCalzi of counsel), for respondent.
REINALDO E. RIVERA, J.P., DANIEL D. ANGIOLILLO, CHERYL E. CHAMBERS, and SHERI S. ROMAN, JJ.
In an action, inter alia, to recover damages for medical malpractice, etc., the defendant Nicolas Raio, appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Parga, J.), entered September 21, 2011, as denied, as untimely, his motion for summary judgment dismissing the complaint insofar as asserted against him.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly declined to consider the merits of the appellant's motion for summary judgment, which was made approximately 1 1/2 years after the deadline set by the Court ( see generally Brill v. City of New York, 2 N.Y.3d 648, 781 N.Y.S.2d 261, 814 N.E.2d 431). As a general rule, an untimely motion or cross motion for summary judgment may be considered on its merits if there is a timely, pending motion for summary judgment made by another party “on nearly identical grounds” ( Grande v. Peteroy, 39 A.D.3d 590, 592, 833 N.Y.S.2d 615;see Homeland Ins. Co. of N.Y. v. National Grange Mut. Ins. Co., 84 A.D.3d 737, 922 N.Y.S.2d 522). Here, however, the appellant's motion for summary judgment was not responsive to a timely, pending motion for summary judgment, as it was made after the Supreme Court decided the other motions for summary judgment in the case ( see Bicounty Brokerage Corp. v. Burlington Ins. Co., 101 A.D.3d 778, 957 N.Y.S.2d 161). As the appellant failed to proffer any other excuses that would constitute good cause for the delay in making his motion, the court properly declined to consider it on its merits ( see Chechile v. Magee, 66 A.D.3d 625, 625–626, 885 N.Y.S.2d 641).