Opinion
2007-886 K C.
Decided July 10, 2008.
Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered April 19, 2007. The order denied defendant's motion for summary judgment on the ground that it was untimely.
Order affirmed without costs.
PRESENT: RIOS, J.P., PESCE and GOLIA, JJ.
In this action to recover damages for personal injuries, it was undisputed that the parties had 60 days after the notice of trial was filed to move for summary judgment ( see CPLR 3212 [a]). Defendants moved for summary judgment after said date. They asserted that their motion was timely due to the fact that the 60-day period was extended five days pursuant to CPLR 2103 (b) (2) because plaintiff served the notice of trial by mail and because, notwithstanding the fact that the affidavit of service pertaining to the notice of trial set forth the date on which the notice of trial was served, the postmark on the envelope attached as an exhibit established that the notice of trial was actually mailed one week later. The court denied defendants' motion for summary judgment on the ground that it was untimely. This appeal by defendants ensued.
"Papers that are required to be filed are considered to have been filed when they are received by the office with which . . they are to be filed" ( Castro v Homsun Corp., 34 AD3d 616, 617 [2d Dept 2006]; see also Crawford v Liz Claiborne, Inc., 45 AD3d 284 [1st Dept 2007]; Coty v County of Clinton, 42 AD3d 612 [3d Dept 2007]). The day on which the notice of trial was filed was the day which started the 60-day period within which defendants could timely move for summary judgment ( Coty, 42 AD3d at 613; Castro, 34 AD3d at 617). Although plaintiff served the notice of trial by mail, CPLR 2103 (b) (2) did not extend defendants' time to move for summary judgment ( Coty, 42 AD3d at 613-614; see also Crawford v Liz Claiborne, Inc., 45 AD3d 284, supra [court's calculation of 60-day period within which a timely motion could be made was based upon the day the note of issue was filed rather than the day it was served by mail plus additional five days]; cf. Luciano v Apple Maintenance Servs., 289 AD2d 90 [1st Dept 2001]; Szabo v XYZ, Two Way Radio Taxi Assn., 267 AD2d 134 [1st Dept 1999]). Moreover, defendants' assertion that plaintiff did not mail the notice of trial to defendants on the date set forth in plaintiff's affidavit of service was unsupported by an affidavit from someone with personal knowledge as to when it was received and is thus insufficient to rebut the allegations set forth in the affidavit of service ( Ortega v Trefz, 44 AD3d 916 [2d Dept 2007]).
In light of the foregoing, defendants' motion for summary judgment was untimely. Since the record does not establish that there was good cause for the delay in moving for summary judgment, the court properly denied defendants' motion for summary judgment without regard to the merits of the motion ( see Tower Ins. Co. of N.Y. v Razy Assoc., 37 AD3d 702 [2d Dept 2007]; Castro, 34 AD3d at 617; Giannattasio v Han Suk Kang, 30 AD3d 375 [2d Dept 2006]).
In light of the foregoing, we reach no other issue.
Rios, J.P., Pesce and Golia, JJ., concur.