Defendant–Respondent, v. <<

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

Encore I, Inc., Plaintiff/Counterclaim Defendant–Respondent, v.

Peter Kabcenell, Defendant/Counterclaim Plaintiff–Appellant, v. Greg Selig, Counterclaim Defendant–Respondent.


Decided: April 05, 2018

Richter, J.P., Manzanet–Daniels, Andrias, Kapnick, Webber, JJ. Josh Bernstein, P.C., New York (Josh Alexander Bernstein of counsel), for appellant. Wood Smith Henning & Berman, LLP, New York (Christopher F. Lyon of counsel), for respondents.


Order, Supreme Court, New York County, (Jennifer G. Schecter, J.), entered January 5, 2017, which denied defendant Peter Kabcenell's motion for summary judgment, unanimously affirmed, without costs.

The motion court properly denied defendant's summary judgment motion on the basis that the motion was untimely filed (see Freire–Crespo v. 345 Park Ave. L.P., 122 AD3d 501, 502 [1st Dept 2014] ).  Defendant filed his motion well after the deadline set down in the preliminary conference order of April 23, 2014;  that filing deadline continued to control even after the matter was transferred to a successor justice in the same trial part, since no later order provided otherwise (id.;  see also Winfield v Monticello Senior Hous. Assoc., 136 AD3d 451, 452 [1st Dept 2016] ).  In addition, the motion court providently exercised its discretion in determining that defendant provided no good cause for his delay in filing the motion (Brill v. City of New York, 2 NY3d 648, 652 [2004] ).

We have considered defendant's remaining contentions and find them unavailing.