BEJARANO v. New York City Transit Authority, appellant. (2005)

In an action to recover damages for personal injuries, etc., the defendant New York City Transit Authority appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Schulman, J.), dated June 2, 2003, as denied that branch of its cross motion which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

The defendant New York City Transit Authority (hereinafter the NYCTA) cross-moved for leave to file a summary judgment motion approximately 10 months after the note of issue was filed, and maintained that the late filing was due to its large caseload.   The NYCTA also maintained that the cross motion was meritorious and that the plaintiffs would not be prejudiced by its late filing.   The Supreme Court, in effect, granted the NYCTA leave and denied its cross motion, finding that the affirmation submitted by the NYCTA's attorney was not based on personal knowledge and was without evidentiary value.

As the NYCTA failed to provide any excuse which constituted good cause for its late filing, the Supreme Court should not have, in effect, granted the NYCTA leave to file its cross motion for summary judgment and considered its merits (see Miceli v. State Farm Mut. Ins. Co., 3 N.Y.3d 725, 786 N.Y.S.2d 379, 819 N.E.2d 995;  Brill v. City of New York, 2 N.Y.3d 648, 781 N.Y.S.2d 261, 814 N.E.2d 431;  Thompson v. New York City Bd. of Educ., 10 A.D.3d 650, 651, 781 N.Y.S.2d 617).

The argument raised by the NYCTA on this appeal has been rendered academic in light of our determination.