LOZZI v. Arrow Sheet Metal Works, Inc., Defendant–Respondent. (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  Defendants Fuller Road Management Corporation (Fuller) and M+W U.S., Inc. (MWI) appeal from an order that, inter alia, denied the cross motion of Fuller and MWI seeking summary judgment on their cross claim for indemnification against defendant Arrow Sheet Metal Works, Inc. We affirm.

Supreme Court properly denied the cross motion of Fuller and MWI inasmuch as it was untimely.  In a scheduling order, the court ordered that motions for summary judgment must be filed and served within 60 days of the filing of the trial note of issue.  Plaintiff subsequently filed the note of issue on November 20, 2017.  The joint cross motion for summary judgment filed by Fuller and MWI on March 19, 2018 was therefore untimely, and Fuller and MWI were thus required to establish good cause for the delay (see Mitchell v. City of Geneva, 158 A.D.3d 1169, 1169, 70 N.Y.S.3d 290 [4th Dept. 2018];  Finger v. Saal, 56 A.D.3d 606, 606–607, 870 N.Y.S.2d 32 [2d Dept. 2008];  see generally Brill v. City of New York, 2 N.Y.3d 648, 651, 781 N.Y.S.2d 261, 814 N.E.2d 431 [2004]).  Fuller and MWI first addressed the issue of “good cause” in their reply papers, however, and “[i]t is well settled that it is improper for a court to consider the ‘good cause’ proffered by a movant if it is presented for the first time in reply papers” (Mitchell, 158 A.D.3d at 1169, 70 N.Y.S.3d 290;  see Bissell v. New York State Dept. of Transp., 122 A.D.3d 1434, 1434–1435, 995 N.Y.S.2d 530 [4th Dept. 2014]).

Contrary to the contention of Fuller and MWI, their untimely cross motion was not “made on nearly identical grounds” as plaintiff's timely motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) claim, and thus their cross motion was not properly before the court on that basis (Cracchiola v. Sausner, 133 A.D.3d 1355, 1356, 19 N.Y.S.3d 834 [4th Dept. 2015] [internal quotation marks omitted];  see Jarama v. 902 Liberty Ave. Hous. Dev. Fund Corp., 161 A.D.3d 691, 691–692, 78 N.Y.S.3d 73 [1st Dept. 2018]).

In light of our determination, we do not address the remaining contentions of Fuller and MWI.