KAPS ALL PACKAGING SYSTEMS INC v. COHEN (2009)

In an action, inter alia, to recover damages for breach of the duty of loyalty, the defendant Joshua R. Cohen appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Baisley, J.), dated April 2, 2008, as denied, as untimely, his motion for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In this action, inter alia, to recover damages for breach of the duty of loyalty, the plaintiff filed a note of issue on August 14, 2007.   By order dated December 6, 2007, the Supreme Court denied the appellant's cross motion for summary judgment dismissing the complaint insofar as asserted against him “without prejudice to the making of a new motion for the same relief made within 30 days of the entry of this order.”   The order was entered on December 11, 2007.   The appellant did not make a new motion for summary judgment until January 16, 2008.   Consequently, the Supreme Court denied the motion as untimely.   The appellant argues that this was error because he was not served with the December 6, 2007, order with notice of entry until on or about January 16, 2008, and his new motion for summary judgment was made within 30 days of such service.   However, the Supreme Court did not err or improvidently exercise its discretion in enforcing the December 6, 2007, order as written (cf. Matter of County of Sullivan [Spring Lake Retreat Ctr., Inc.], 39 A.D.3d 1095, 835 N.Y.S.2d 482;  Pi Ju Tang v. St. Francis Hosp., 37 A.D.3d 690, 691, 830 N.Y.S.2d 311;  Matter of County of Clinton [Bouchard], 29 A.D.3d 79, 810 N.Y.S.2d 565;  Lyons v. Butler, 134 A.D.2d 576, 521 N.Y.S.2d 477;  Matter of Oak Is. Beach Assn. v. Flacke, 96 A.D.2d 841, 842, 465 N.Y.S.2d 596;  see also Thewet v. Clarke, 38 A.D.3d 447, 833 N.Y.S.2d 47;  Gallo v. Ventimiglia, 283 A.D.2d 331, 726 N.Y.S.2d 17).