MAURIZACA v. 201 WATER STREET LLC (2024)

Order, Supreme Court, New York County (Paul A. Goetz, J.), entered September 30, 2022, which denied third-party defendant Apex Restoration Corp.’s (Apex) motion for summary judgment, unanimously affirmed, with costs.

The motion court providently determined that Apex failed to show good cause for its delay in filing its motion for summary judgment dismissing the third-party plaintiffs’ claims for common-law indemnity and contribution under Workers’ Compensation Law § 11 (see Brill v. City of New York, 2 N.Y.3d 648, 652, 781 N.Y.S.2d 261, 814 N.E.2d 431 [2004]).  While Apex claims that it could not have filed its motion until it obtained an IME report from third-party plaintiffs, Apex also admits that it did not need the report to meet its prima facie burden under Workers’ Compensation Law § 11 (see Dabrowski v. Abax Inc., 216 A.D.3d 546, 189 N.Y.S.3d 494 [1st Dept. 2023];  cf.  Gonzalez v. 98 Mag Leasing Corp., 95 N.Y.2d 124, 129, 711 N.Y.S.2d 131, 733 N.E.2d 203 [2000]).  Indeed, as noted by the motion court, Apex did not even rely on the vocational rehabilitation report, which was exchanged a few months before it filed its motion.  In any event, even if this report were essential to its motion, Apex fails to explain why it waited more than three months after obtaining it to move for summary judgment (see e.g. Perini Corp. v. City of New York (Department of Envtl. Protection), 16 A.D.3d 37, 40, 789 N.Y.S.2d 29 [1st Dept. 2005]).  Apex's arguments on the merits are irrelevant to determining good cause (see Miceli v. State Farm Mut. Auto. Ins. Co., 3 N.Y.3d 725, 726, 786 N.Y.S.2d 379, 819 N.E.2d 995 [2004]).