Adam Andron, Plaintiff–Appellant, v. The City of New York, et al., Defendants–Respondents.

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

Adam Andron, Plaintiff–Appellant, v. The City of New York, et al., Defendants–Respondents.

1248 0

Decided: May 13, 2014

Tom, J.P., Acosta, Moskowitz, Gische, Clark, JJ. Philip J. Rizzuto P.C., Carle Place (Kenneth R. Shapiro of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Benjamin Welikson of counsel), for respondents.

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Order, Supreme Court, New York County (Geoffrey Wright, J.), entered June 19, 2013, which denied plaintiff's motion seeking to strike defendants' answer for willful concealment of discovery and intentional violation of prior court orders directing disclosure, and granted defendants' cross motion for summary judgment dismissing the complaint, unanimously modified, on the law, to deny defendants' cross motion as untimely, and otherwise affirmed, without costs.

The court properly denied plaintiff's motion to strike the City's answer for late disclosure of evidence.   Whether the additional documents disclosed are relevant can be fully explored at trial.

However, the motion court abused its discretion in granting leave for defendants to cross-move for summary judgment on the issue of lack of prior written notice, upon presentation of this late disclosure, on grounds unrelated to plaintiff's motion, and in the absence of good cause for the untimely motion (see Brill v. City of New York, 2 NY3d 648 [2004];  Gonzalez v. 98 Mag Leasing Corp., 95 N.Y.2d 124, 129 [2000] ).   Were we to consider the merits of the cross motion on this issue, we would find that issues of fact preclude summary judgment (see Sacco v. City of New York, 92 AD3d 529 [1st Dept 2012] ).

Further, the motion court erred in considering the sufficiency of the notice of claim as a basis to dismiss plaintiff's action.   This ground was not litigated or raised by the parties, and plaintiff was prejudiced, since he was unable to respond to the ground considered sua sponte by the court (Greene v. Davidson, 210 A.D.2d 108, 109 [1st Dept 1994], lv denied 85 N.Y.2d 806 [1995] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK