SMITH v. NAMETH (2006)

In two related actions to recover damages for personal injuries, the plaintiffs appeal from so much of an order of the Supreme Court, Dutchess County (Dolan, J.), dated February 14, 2005, as granted that branch of the motion of the defendants in Action No. 2 which was for summary judgment dismissing the complaint in Action No. 2.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the motion which was for summary judgment dismissing the complaint in Action No. 2 is denied, and the complaint in Action No. 2 is reinstated.

Contrary to the plaintiffs' contention, the Supreme Court providently exercised its discretion in entertaining the defendants' motion for summary judgment, which was made returnable 19 days beyond the deadline fixed by the Supreme Court in its preliminary conference order.   The defendants demonstrated good cause for their minor delay by explaining that it was due to the difficulties encountered in obtaining an affidavit from the defendant Ronald Merritt, a bus driver, who had been on continuous medical disability leave from his employment since November 2003.   The affidavit was not wholly duplicative of Merritt's deposition testimony and was necessary to the summary judgment motion (see Kunz v. Gleeson, 9 A.D.3d 480, 781 N.Y.S.2d 50;  cf. Brill v. City of New York, 2 N.Y.3d 648, 781 N.Y.S.2d 261, 814 N.E.2d 431;  Espejo v. Hiro Real Estate Co., 19 A.D.3d 360, 796 N.Y.S.2d 162).

However, the Supreme Court should not have granted that branch of the motion which was for summary judgment dismissing the complaint in Action No. 2, since triable issues of fact exist.