Opinion
01-03-2017
José R. HENNESSEY–DIAZ, Plaintiff–Appellant, v. The CITY OF NEW YORK, Defendant–Respondent, 601–142 Realty L.L.C., Defendant–Appellant.
Jonathan C. Reiter Law Firm, PLLC, New York (Jonathan C. Reiter of counsel), for José R. Hennessey–Diaz, appellant. Mintzer Sarowitz Zeris Ledva & Meyers, LLP, New York (Richard A. Gash of counsel), for 601–142 Realty L.L.C., appellant. Zachary W. Carter, Corporation Counsel, New York (Daniel Matza–Brown of counsel), for respondent.
Jonathan C. Reiter Law Firm, PLLC, New York (Jonathan C. Reiter of counsel), for José R. Hennessey–Diaz, appellant.
Mintzer Sarowitz Zeris Ledva & Meyers, LLP, New York (Richard A. Gash of counsel), for 601–142 Realty L.L.C., appellant.
Zachary W. Carter, Corporation Counsel, New York (Daniel Matza–Brown of counsel), for respondent.
SAXE, J.P., MOSKOWITZ, GISCHE, KAHN, GESMER, JJ.
Order, Supreme Court, New York County (James E. d'Auguste, J.), entered on or about November 25, 2015, which granted defendant City of New York's motion for summary judgment dismissing the complaint, and denied the " cross motion" of defendant 601–142 Realty L.L.C. for summary judgment, unanimously modified, on the law, to deny the City's motion for summary judgment, and otherwise affirmed, without costs.
The affidavit of Ralph Gentles, an associate production manager of Sanborn Map Co., Inc. responsible for the legend on Big Apple Maps, wherein he averred that the symbol for a "raised or uneven portion of the side walk," which appears on the Big Apple Map in the area where plaintiff tripped over a raised manhole cover, also applied to the manhole cover which would have been considered part of the sidewalk, was competent evidence of the business or professional custom or practice of the designations used by the company (see Soltis v. State of New York, 188 A.D.2d 201, 594 N.Y.S.2d 433 [3d Dept.1993] ; see e.g. Reyes v. City of New York, 20 Misc.3d 1134[A], 2008 WL 3539511 [Sup.Ct., Bronx County 2008], affd. 63 A.D.3d 615, 882 N.Y.S.2d 64 [1st Dept.2009], lv. denied 13 N.Y.2d 710, 2009 WL 3428042 [2009] ). As such, it raised a triable issue of fact as to whether the Big Apple Map gave the City prior written notice of the defect, and the court should have denied the City's motion for summary judgment predicated on the lack of such notice.
The court properly denied defendant 601–142 Realty L.L.C.'s motion for summary judgment on the ground that it was untimely and defendant failed to offer good cause for its late filing (see Brill v. City of New York, 2 N.Y.3d 648, 652, 781 N.Y.S.2d 261, 814 N.E.2d 431 [2004] ). Law office failure is insufficient to demonstrate the good cause necessary to permit an untimely summary judgment motion (see Quinones v. Joan & Sanford I. Weill Med. Coll. & Graduate Sch. of Med. Sciences of Cornell Univ., 114 A.D.3d 472, 473–473, 980 N.Y.S.2d 88 [1st Dept.2014] ; Matter of Hibbert, 137 A.D.3d 786, 787, 25 N.Y.S.3d 893 [2nd Dept.2016] ). Moreover, defendant's purported cross motion was "an improper vehicle for seeking relief from a nonmoving party" (Kershaw v. Hospital for Special Surgery, 114 A.D.3d 75, 88, 978 N.Y.S.2d 13 [1st Dept.2013] ; see also Genger v. Genger, 120 A.D.3d 1102, 1103, 993 N.Y.S.2d 297 [1st Dept.2014] ).
We have examined the parties' remaining contentions and find them unavailing.