FOXX v. Francis Burgos, Defendant. (2024)

Order, Supreme Court, Bronx County (Patsy Gouldborne, J.), entered on or about July 17, 2023, which denied defendants Berrosa Auto Corp. and Daniel S. Almonte's motions to strike plaintiff's note of issue and for summary judgment dismissing the complaint against them, unanimously affirmed, without costs.

The court correctly denied defendants’ motion to strike the note of issue.  Plaintiff properly filed the note of issue on September 24, 2020, during the period from September 24, 2020 to September 30, 2020 when no stay of litigation tasks or procedures was in effect.  Even accepting the contention that defendants could wait until October 24, 2022 to move to strike when Supreme Court lifted the liquidation order's stay, their motion was still untimely, as it was filed 20 days late.  Defendants failed to demonstrate good cause for the delay or unusual or unanticipated circumstances justifying post-note discovery (see 22 NYCRR 202.21[d];  Palmiero v. 417 E. 9th St. Assoc., LLC, 167 A.D.3d 472, 472, 88 N.Y.S.3d 27 [1st Dept. 2018];  Prevost v. One City Block LLC, 155 A.D.3d 531, 537, 65 N.Y.S.3d 172 [1st Dept. 2017]).

The court also correctly denied defendants’ motion for summary judgment.  The court's part rules established that summary judgment motions must be brought within 60 days after the filing of the note of issue (see CPLR 3212[a]).  Defendants filed their motion on January 12, 2023, well over 60 days after the liquidation stay was lifted on October 24, 2022.  Moreover, defendants’ mistaken belief that the court would deem the note of issue a nullity was insufficient to satisfy the good cause requirement (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];  Ford v. City of New York, 54 A.D.3d 263, 266–267, 863 N.Y.S.2d 180 [1st Dept. 2008]).