TEPPER v. Nico Asphalt Paving, Inc., Defendant-Appellant. (2004)

Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered October 27, 2003, which denied as untimely defendant-appellant's motion for summary judgment dismissing the complaint and all cross claims against it, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, the motion granted and the complaint dismissed.   The Clerk is directed to enter judgment in favor of defendant-appellant dismissing the complaint.

Under the circumstances of this case, the court should have exercised its discretion to excuse the brief delay in moving for summary judgment (see CPLR 3212[a];  Quinlan v. Kaufman, 258 A.D.2d 453, 684 N.Y.S.2d 597 [1999] ).

Defendant-appellant demonstrated that on the merits it was entitled to judgment as a matter of law by establishing that it did not remove, repair or restore the concrete blocks in the crosswalk on which plaintiff tripped and fell.   In opposition to the motion, plaintiffs and defendant-respondent the City demonstrated no more than that defendant-appellant was present at the site during the project, thus failing to raise an issue of fact as to whether defendant-appellant worked on the concrete blocks on which plaintiff fell.