CRAWFORD v. LIZ CLAIBORNE INC (2008)

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered September 20, 2006, which, in an action for, inter alia, discrimination on the basis of sexual orientation, granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff's contention that defendants' motion for summary judgment was untimely has been rejected by the Court of Appeals, which found that the motion was timely (11 N.Y.3d 810, --- N.Y.S.2d ----, --- N.E.2d ---- [2008] ).   On the merits of that motion, defendants met their burden of demonstrating prima facie entitlement to summary judgment, and were properly granted summary judgment given that plaintiff's only argument in opposition to the motion was that it was untimely.   We reject plaintiff's argument that the court erred in not giving him an opportunity to address defendants' motion on the merits in the event the court rejected his argument that the motion was untimely.   Plaintiff initially challenged the timeliness of defendants' motion by filing an order to show cause to strike the motion that, several days later, was orally argued and denied in a written order that directed plaintiff to raise the timeliness issue in his response to defendants' motion.   The clear import was that any substantive response had to be raised along with the timeliness issue.   If plaintiff was uncertain as to what was expected, he should have sought clarification.