DS BY MARIE v. [And A Third-Party Action] (2024)

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about September 26, 2022, which denied New York City Housing Authority's (N.Y.CHA) motion for leave to file a late motion for summary judgment, and, upon leave, to award summary judgment dismissing the complaint as against it, or, in the alternative, for an order directing plaintiffs to abide by a settlement agreement, unanimously modified, on the law, to the extent of granting NYCHA's motion for leave to file a late motion for summary judgment and remanding the matter for consideration of the motion on the merits, and otherwise affirmed, without costs.

In this action involving an infant allegedly exposed to lead-based paint found in his apartment, the settlement amount plaintiff “[a]greed” to in an email failed to constitute an enforceable agreement.  While the email set forth the only material term, namely the sum of money to be agreed upon (see Guice v. PPC Residential, LLC, 212 A.D.3d 577, 577, 182 N.Y.S.3d 94 [1st Dept. 2023]), the agreement required approval of the court pursuant to CPLR 1207 and 1208.

However, NYCHA established good cause for leave to file a late summary judgment motion.  The parties had agreed upon an amount and NYCHA forwarded the release documents to plaintiff before NYCHA's time to file the motion expired on March 18, 2022.  It was not until May 23, 2022, that plaintiff reneged on the settlement, more than two months after NYCHA's time to file expired.  Had this agreement not involved an infant requiring court approval of the settlement, it would have been enforceable (see Guice, 212 A.D.3d at 577–578, 182 N.Y.S.3d 94;  Rawald v. Dormitory Auth. Of State of N.Y., 199 A.D.3d 477, 478, 156 N.Y.S.3d 201 [1st Dept. 2021]).  NYCHA's good faith belief that the action settled and plaintiff's repudiation after expiration constituted a satisfactory explanation for the untimeliness of its motion (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]).

Because the motion court did not consider the motion, we decline to reach the merits, as NYCHA urges (see Commissioner of the State Ins. Fund v. Weissman, 90 A.D.3d 417, 934 N.Y.S.2d 27 [1st Dept. 2011];  see also Riordan v. Garces, 216 A.D.3d 416, 416–417, 187 N.Y.S.3d 630 [1st Dept. 2023]).  Accordingly, the matter is remanded for consideration of NYCHA's motion.