TORRES v. SERLIN BUILDING LIMITED PARTNERSHIP (2022)

DECISION & ORDER

In a consolidated action, inter alia, to recover damages for wrongful death, etc., the defendants Serlin Building Limited Partnership, Serlin Building Management, Inc., Direct Building Management, Inc., and Neighborhood Partnership Housing Development Fund Company, Inc., appeal from an order of the Supreme Court, Kings County (Larry D. Martin, J.), dated February 13, 2020.  The order, insofar as appealed from, denied those defendants’ motion for leave to extend their time to move for summary judgment and, thereupon, for summary judgment dismissing the complaint and amended complaints insofar as asserted against them.

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

This consolidated action arises out of a fatal fire at an apartment building owned by the defendant City of New York, leased by the defendant Neighborhood Partnership Housing Development Fund Company, Inc. (hereinafter Neighborhood Partnership), and managed by the defendant Serlin Building Management, Inc. (hereinafter Serlin, Inc.).  On January 18, 2019, the plaintiffs filed a note of issue.  On or about June 17, 2019, approximately 150 days after the filing of the note of issue, Neighborhood Partnership, Serlin, Inc., and the defendants Serlin Building Limited Partnership and Direct Building Management, Inc. (hereinafter collectively the building defendants), moved for leave to extend their time to move for summary judgment and, thereupon, for summary judgment dismissing the complaint and amended complaints insofar as asserted against them.  In an order dated February 13, 2020, the Supreme Court, inter alia, denied the building defendants’ motion.  The building defendants appeal.

Pursuant to CPLR 3212(a), courts have “considerable discretion to fix a deadline for filing summary judgment motions,” so long as the deadline is not “earlier than 30 days after filing the note of issue or (unless set by the court) later than 120 days after the filing of the note of issue, except with leave of court on good cause shown” (Brill v. City of New York, 2 N.Y.3d 648, 651, 781 N.Y.S.2d 261, 814 N.E.2d 431;  see CPLR 3212[a];  Lanza v. M–A–C Home Design & Constr. Corp., 188 A.D.3d 855, 856, 135 N.Y.S.3d 495;  Gonzalez v. Pearl, 179 A.D.3d 645, 645–646, 113 N.Y.S.3d 584).  With limited exception not applicable here, in Kings County, a party is required to make its motion for summary judgment no later than 60 days after the filing of the note of issue, unless it obtains leave of the court on good cause shown (see Kings County Supreme Court Uniform Civil Term Rules, part C, rule 6;  Gonzalez v. Pearl, 179 A.D.3d at 646, 113 N.Y.S.3d 584;  Goldin v. New York & Presbyt. Hosp., 112 A.D.3d 578, 579, 975 N.Y.S.2d 892).

Here, contrary to the building defendants’ contention, the fact that the deposition of a nonparty witness remained outstanding when the note of issue was filed does not constitute good cause in this case, as they failed to move for summary judgment until approximately 21/212 months after the deposition was held on April 2, 2019 (see Caban v. Mastrosimone, 129 A.D.3d 757, 758, 10 N.Y.S.3d 615;  Tower Ins. Co. of N.Y. v. Razy Assoc., 37 A.D.3d 702, 703–704, 830 N.Y.S.2d 726;  Espejo v. Hiro Real Estate Co., 19 A.D.3d 360, 361, 796 N.Y.S.2d 162).  Although the building defendants’ attorney averred in an affirmation submitted in support of the motion that he received the deposition transcript on May 15, 2019, he offered no explanation for the delay in obtaining the transcript or the subsequent delay in moving for summary judgment.  Thus, the building defendants failed to establish good cause for granting an extension of time to move for summary judgment.

The parties’ remaining contentions need not be reached in light of our determination.

Accordingly, the Supreme Court properly denied the building defendants’ motion for leave to extend their time to move for summary judgment and, thereupon, for summary judgment dismissing the complaint and amended complaints insofar as asserted against them.

CONNOLLY, J.P., ROMAN, FORD and WAN, JJ., concur.