INGRAM BY COLE v. ASSOCIATION FOR METROAREA AUTISTIC CHILDREN INC (2021)

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered on or about April 4, 2019, which, upon granting plaintiff's motion for reargument, denied as untimely defendants' motion for summary judgment dismissing the complaint, and order, same court and Justice, entered on or about January 10, 2020, which denied defendant's motion to renew its motion for summary judgment, unanimously affirmed, without costs.

While plaintiff should have moved for vacatur of the grant of defendants' motion for summary judgment rather than reargument (see Hutchinson Burger, Inc. v. Bradshaw, 149 A.D.3d 545, 50 N.Y.S.3d 267 [1st Dept. 2017];  Country Wide Home Loans, Inc. v. Dunia, 138 A.D.3d 533, 28 N.Y.S.3d 319 [1st Dept. 2016] ), because plaintiff attached an affidavit demonstrating excusable default and an affidavit showing possible merit, we will treat the underlying motion as a motion to vacate.  Upon vacatur, we find that the trial court's sua sponte denial of defendants' motion for summary judgment as untimely was proper (see Appleyard v. Tigges, 171 A.D.3d 534, 535–536, 98 N.Y.S.3d 174 [1st Dept. 2019];  cf. Astrakan v. City of New York, 184 A.D.3d 444, 125 N.Y.S.3d 709 [1st Dept. 2020];  Gomez v. Penmark Realty Corp., 50 A.D.3d 607, 857 N.Y.S.2d 94 [1st Dept. 2008] ).  Any prejudice to defendant from the court's sua sponte consideration of the timeliness issue was ameliorated by defendant's raising the issue in its motion for leave to renew (see Bayo v. 626 Sutter Ave. Assoc., LLC, 106 A.D.3d 648, 650, 966 N.Y.S.2d 390 [1st Dept. 2013] ).  Further, any error in denying the motion to renew was also harmless, as defendant failed to establish that its motion for summary judgment was timely or that good cause existed for its untimeliness.  Defendant failed to show that outstanding discovery was significant or essential to the motion (see generally Filannino v. Triborough Bridge & Tunnel Auth., 34 A.D.3d 280, 282–283, 824 N.Y.S.2d 244 [1st Dept. 2006], appeal dismissed 9 N.Y.3d 862, 840 N.Y.S.2d 765, 872 N.E.2d 878 [2007];  Pena v. Women's Outreach Network, Inc., 35 A.D.3d 104, 108, 824 N.Y.S.2d 3 [1st Dept. 2006] ).