BRESSINGHAM v. JAMAICA HOSPITAL MEDICAL CENTER (2005)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (O'Donoghue, J.), dated October 17, 2003, as granted that branch of the cross motion of the defendant Jamaica Hospital Medical Center which was for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the cross motion of the defendant Jamaica Hospital Medical Center which was for summary judgment dismissing the complaint insofar as asserted against it is denied, and the complaint is reinstated insofar as asserted against that defendant.

The branch of the cross motion of defendant Jamaica Hospital Medical Center which was for summary judgment dismissing the complaint insofar as asserted against it, made more than 120 days after the filing of the note of issue, was untimely (see CPLR 3212[a] ) and should not have been entertained without a showing of good cause for the delay (see Brill v. City of New York, 2 N.Y.3d 648, 781 N.Y.S.2d 261, 814 N.E.2d 431).   There was no such showing here.   While the pending motion of the codefendant, Pyrosignal & Suppression, Inc., for similar relief would have been a sufficient basis to consider the untimely motion had the motion and cross motion been nearly identical (see Boehme v. A.P.P.L.E., A Program Planned for Life Enrichment, 298 A.D.2d 540, 541-542, 749 N.Y.S.2d 49;  Miranda v. Devlin, 260 A.D.2d 451, 688 N.Y.S.2d 578), they were not.