CABIBEL v. <<

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Supreme Court, Appellate Division, First Department, New York.

Abdou CABIBEL, Plaintiff-Appellant, v.

XYZ ASSOCIATES, L.P., et al., Defendants/Third-Party Plaintiffs-Respondents, v. L & L Wings Inc., Third-Party Defendant-Respondent.

Decided: January 18, 2007

TOM, J.P., MARLOW, WILLIAMS, GONZALEZ, CATTERSON, JJ. David Horowitz, P.C., New York (Steven J. Horowitz of counsel), for appellant. Ahmuty Demers & McManus, Albertson (Brendan T. Fitzpatrick of counsel), for XYZ Associates, L.P., Broadway 656 Corp. and Walter & Samuels, Inc., respondents. Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York (Bianca Michelis of counsel), for L & L Wings Inc., respondent.

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered May 11, 2006, which granted defendants/third-party plaintiffs' motion for summary judgment dismissing the complaint and which dismissed the claims against third-party defendant L & L Wings, unanimously reversed, on the law, without costs, the motion denied and the complaint and third-party complaint reinstated.

It is undisputed that defendants moved for summary judgment approximately 60 days after the date set by the court without seeking leave of the court or offering an explanation showing good cause for the delay.   Defendants failed to seek an extension of time to file their motion or to proffer an excuse for their delay, doing so only in reply to plaintiff's opposition.   Defendants also failed to move to vacate the note of issue.   The motion should thus have been denied as untimely (CPLR 3212[a] ), and the court should have declined to reach the merits (Brill v. City of New York, 2 N.Y.3d 648, 781 N.Y.S.2d 261, 814 N.E.2d 431 [2004];  see also Miceli v. State Farm Mut. Auto. Ins. Co., 3 N.Y.3d 725, 786 N.Y.S.2d 379, 819 N.E.2d 995 [2004] ).