TRAY WRAP INC v. PACIFIC TOMATO GROWERS LTD (2009)

Orders, Supreme Court, Bronx County (Nelson S. Roman, J.), entered on or about February 11, 2008, and same court (Stanley Green, J.), entered on or about March 7, 2008, which granted defendants' respective motions for summary judgment dismissing the complaint, unanimously affirmed, with costs.

Plaintiff asserts that the instant motions should be denied as untimely because they were made without judicial leave more than 120 days after the filing of the note of issue (see CPLR 3212[a] ).   It is undisputed that defendants previously made timely motions for summary judgment.   By decision dated February 6, 2007, Supreme Court denied the same, without prejudice to resubmission upon papers which were to include copies of the pleadings.   Such motions were made within a reasonable time thereafter.   Accordingly, the instant motions, although untimely, were made with leave of the court upon a showing of good cause pursuant to the statute.

 Plaintiff's claim for malicious prosecution was properly dismissed for the same reasons stated by this Court in G & T Term. Packaging Co., Inc. v. Western Growers Assn., 56 A.D.3d 266, 867 N.Y.S.2d 58 [2008].   Indeed, this very plaintiff made similar arguments based on materially indistinguishable facts.   Accordingly, plaintiff's claim is barred by res judicata/collateral estoppel (Matter of Reilly v. Reid, 45 N.Y.2d 24, 407 N.Y.S.2d 645, 379 N.E.2d 172 [1978];  Smith v. Russell Sage College, 54 N.Y.2d 185, 445 N.Y.S.2d 68, 429 N.E.2d 746 [1981] ).   Plaintiff's claim for abuse of process was also properly dismissed for failure to show that the complaint in the underlying proceeding pursuant to the Perishable Agricultural Commodities Act, 1930 (7 USC § 499a et seq.) was filed without justification and with intent to do harm, or that the process was in any way perverted (see Curiano v. Suozzi, 63 N.Y.2d 113, 116, 480 N.Y.S.2d 466, 469 N.E.2d 1324 [1984];  Williams v. Williams, 23 N.Y.2d 592, 596, 298 N.Y.S.2d 473, 246 N.E.2d 333 [1969] ).