Opinion
2002-09437
Argued June 2, 2003.
July 7, 2003.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Cammer, J.), dated July 22, 2002, as granted that branch of the motion of the defendant D C Parking which was for summary judgment dismissing the complaint insofar as asserted against it.
Michael N. David, New York, N.Y., for appellant.
Wade Clark Mulcahy, New York, N.Y. (Kathleen M. Mulholland and Melissa L. Jolivet of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., GABRIEL M. KRAUSMAN, DANIEL F. LUCIANO, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court is afforded wide latitude with respect to determining whether good cause exists for permitting late motions, and it may, as here, entertain belated but meritorious motions in the interest of judicial economy, even on the eve of trial ( see Quinlan v. Kaufman, 258 A.D.2d 453), where the opposing party fails to demonstrate prejudice ( see Luciano v. Apple Maintenance Servs., 289 A.D.2d 90; Samuel v. A.T.P. Dev. Corp., 276 A.D.2d 685, 686-687; Goodman v. Gudi, 264 A.D.2d 758; Rossi v. Arnot Ogden Med. Ctr., 252 A.D.2d 778, 779-780). Under the unique circumstances of this case, the Supreme Court properly exercised its discretion in allowing the defendant D C Parking to make a belated motion for summary judgment ( see Quinlan v. Kaufman, supra; Goodman v. Gudi, supra).
D C Parking demonstrated its prima facie entitlement to judgment as a matter of law ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853). The plaintiff's testimony at her deposition and at the first trial, which was aborted by her misconduct, established that she tripped and fell on a public sidewalk directly adjacent to the driveway of the premises owned by D C Parking, the abutting landowner. In opposition, the plaintiff failed to raise a triable issue of fact ( see Zuckerman v. City of New York, 49 N.Y.2d 557, 562). The plaintiff failed to demonstrate that the special use of the sidewalk by D C Parking created the defect which proximately caused her to fall ( see Ivanyushkina v. City of New York, 300 A.D.2d 544; Salas v. City of Yonkers, 294 A.D.2d 419, 420; Moschillo v. City of New York, 290 A.D.2d 260; Benenati v. City of New York, 282 A.D.2d 418, 419; Solarte v. DiPalmero, 262 A.D.2d 477; Waldron v. City of New York, 260 A.D.2d 471, 472; Winberry v. City of New York, 257 A.D.2d 618, 619; Rubenstein v. DeGeorgio, 236 A.D.2d 383).
We do not address the plaintiff's remaining contention, as it is improperly raised for the first time on appeal.
ALTMAN, J.P., KRAUSMAN, LUCIANO and CRANE, JJ., concur.