ADVANCED ORTHOPAEDICS PLLC v. STATE FARM INSURANCE COMPANY (2025)

Upon the foregoing cited papers, the Decision and Order on defendant's notice of motion for summary judgment pursuant to CPLR § 3212 and plaintiff's opposition along with defendant's reply is decided as follows:

Defendant commenced this action alleging among other things, that defendant was entitled to reimbursement from plaintiff due to overpayment for services plaintiff provided to plaintiff assignor. Plaintiff in opposition claimed that defendant's motion was not timely filed and should not be considered. Both parties agree that defendant's motion was untimely filed. Plaintiff filed their Notice of Trial on January 9, 2024, and defendant filed the instant motion 15 months later on or about April 24, 2025, which far exceeded the 120 days from January 9, 2024. For the reasons stated below defendant's notice of motion for summary judgment is denied as being untimely.

A motion for summary judgment pursuant to CPLR § 3212(a) provides, in relevant part, that:

“․ Any party may move for summary judgment in any action, after issue has been joined; provided however, that the court may set a date after which no such 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 no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown.”

Defendant, conceding their untimeliness of their motion claimed they have a good cause for their delay in filing a late notice of motion for summary judgment. Good Cause has not been defined within CPLR § 3212. However, “ “good cause” in CPLR § 3212(a) requires a showing of good cause for the delay in making the motion—a satisfactory explanation for the untimeliness”. Brill v. City of New York, 2 NY3d 648, 652 (2004); Gomez v Tilden Estates LLC, 2025 NY Slip Op 04706 (2d Dept 2025); Wittenberg v. L.I. Power Authority, 225 AD3d 730, 732 (2d Dept 2024).

The issue, prior to deciding the merits of the case, is whether defendant has shown good cause for their delay in submitting a late summary judgment motion. Here defendant failed to satisfactorily explain the untimeliness of their motion. defendant, without submitting an affidavit of personal knowledge, stated that they failed to receive the affidavit of their coder named Futoran. Defendant stated that they followed up for the affidavit without providing dates and times. Defendant stated that after receiving a courtesy copy of Futoran's affidavit they filed the instant motion. Defendant's account of events was a general overview devoid of detail to determine whether the explanation was satisfactory. Moreover, the Futoran affidavit failed to mention the delay in obtaining his affidavit. The defendant's failure to establish good cause for its 15-month delay in filing their summary judgment motion warranted denial, without consideration of the merits. Jones v. City of New York, 130 AD3d 686 (2d Dept 2015).

In sum, defendant's motion for summary judgment is denied as untimely.

This constitutes the Decision and Order of the Court.

Patrick Hayes Torres, J.