DELGADO v. LLC (2007)

Supreme Court, Appellate Division, First Department, New York.

Alex DELGADO, Plaintiff-Appellant, v. SESSA NYC, LLC, et al., Defendants, J.S.B. Properties, LLC, Defendant-Respondent.

Decided: November 15, 2007

LIPPMAN, P.J., ANDRIAS, NARDELLI, GONZALEZ, KAVANAGH, JJ.

Law Offices of Steven E. Rosenfeld, P.C., New York (Steven E. Rosenfeld of counsel), for appellant. Thomas D. Hughes, New York (Richard C. Rubinstein of counsel), for respondent.

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered April 26, 2006, which granted the motion of defendant J.S.B. Properties, LLC (JSB) motion for summary judgment dismissing the complaint as against it and for leave to serve the motion after the time required by the preliminary conference order, unanimously affirmed, without costs.

The court properly exercised its discretion in determining that counsel's explanation of a mail room mix-up established “good cause” for the one-day delay in serving the motion (see e.g. Luciano v. Apple Maintenance & Services, Inc., 289 A.D.2d 90, 91, 734 N.Y.S.2d 153 [2001] ).

The court correctly held that JSB was entitled to judgment as a matter of law on the ground that it was an out-of-possession landlord that had no responsibility for the security of the premises at the time of the incident involving plaintiff (see DeLeon v. Port Auth., 306 A.D.2d 146, 146-147, 761 N.Y.S.2d 54 [2003]; Bennett v. Twin Parks Northeast Houses, Inc., 261 A.D.2d 200, 201, 689 N.Y.S.2d 507 [1999] ).

Plaintiff's remaining contention is unavailing.

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