ALVAREZ v. Honeywell, Inc., appellant. (2008)

In an action, inter alia, to recover damages for personal injuries, etc., the defendant Honeywell, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Schulman, J.), entered March 18, 2008, as, upon reargument, adhered to an original determination in an order entered June 27, 2007, denying, as untimely, a renewed motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, upon reargument, the order entered June 27, 2007, denying the renewed motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against the defendant Honeywell, Inc., is vacated, and the matter is remitted to the Supreme Court, Queens County, for a determination of the renewed motion for summary judgment on the merits.

Under the circumstances of this case, Honeywell demonstrated “good cause” for the delay in making the renewed motion (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), since significant discovery was still outstanding after the deposition was taken and Honeywell's expert witnesses needed to consider the additional discovery in preparing the affidavits submitted on the motion (see Gonzalez v. 98 Mag Leasing Corp., 95 N.Y.2d 124, 129, 711 N.Y.S.2d 131, 733 N.E.2d 203;  Cooper v. Hodge, 13 A.D.3d 1111, 1112, 787 N.Y.S.2d 551;  Kunz v. Gleeson, 9 A.D.3d 480, 781 N.Y.S.2d 50;  cf. Filannino v. Triborough Bridge & Tunnel Auth., 34 A.D.3d 280, 824 N.Y.S.2d 244;  Espejo v. Hiro Real Estate Co., 19 A.D.3d 360, 796 N.Y.S.2d 162).   Thus, the Supreme Court improvidently exercised its discretion, upon reargument, in adhering to its prior determination, denying the renewed motion as untimely.

In light of our determination, we need not address the parties' remaining contentions.