BREUER v. Susan Kraminer, appellant. (2017)

In an action to recover damages for personal injuries, the defendant Susan Kraminer appeals from an order of the Supreme Court, Kings County (Schack, J.), dated July 13, 2015, which denied, as untimely, her motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against her.

ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for a determination of the motion on the merits.

In 2010, the plaintiff allegedly tripped and fell on an uneven sidewalk in Brooklyn. She commenced this action against the defendant Susan Kraminer and others. On January 9, 2015, the plaintiff filed a note of issue, even though discovery was still outstanding. In an order dated February 26, 2015, the Supreme Court, Kings County, Centralized Compliance Part (Schneier, J.H.O.), inter alia, directed the plaintiff, if she be so advised, to depose the defendants by April 14, 2015, and extended the time to move for summary judgment to May 29, 2015. By notice of motion dated May 28, 2015, Kraminer moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against her. The motion was unopposed. The Supreme Court, however, denied Kraminer's motion, finding that the motion was untimely.

Under the circumstances of this case, the Supreme Court should not have denied, as untimely, Kraminer's unopposed motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against her. The order dated February 26, 2015, extended the time to move for summary judgment to May 29, 2015, and, thus, the subject motion, made on May 28, 2015, was timely (see CPLR 3212[a]; Kings County Supreme Court Uniform Civil Term Rules, Part C, Rule 6; Miceli v. State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726–727; Brill v. City of New York, 2 NY3d 648, 652; Adika v. Dramitinos, 74 AD3d 848, 849; Alvarez v. Eviles, 56 AD3d 500). Accordingly, the court should have decided Kraminer's motion on the merits, and we remit the matter to the Supreme Court, Kings County, for that purpose.