DiBenedetto v Lowe's Home Ctrs., Inc.

2007 NY Slip Op 06622 [43 AD3d 853]

September 11, 2007

Appellate Division, Second Department

As corrected through Wednesday, November 7, 2007

Salvatore DiBenedetto, Plaintiff, v Lowe's Home Centers,Inc., Defendant and Third-Party Plaintiff-Respondent. Gary DiBenedetto, Third-PartyDefendant-Appellant.

—[*1]Weiner, Millo & Morgan, LLC, New York, N.Y. (John P. Bonanno of counsel), forthird-party defendant-appellant.

In an action to recover damages for personal injuries, the third-party defendant appeals froman order of the Supreme Court, Richmond County (Aliotta, J.), dated November 30, 2006, whichdenied his motion for summary judgment dismissing the third-party complaint.

Ordered that the order is affirmed, without costs or disbursements.

Although the note of issue was filed on April 27, 2006 the third-party defendant failed tomove for summary judgment dismissing the third-party complaint until August 17, 2006,notwithstanding the fact that the court's preliminary conference order expressly recited that suchmotions were to be made within 60 days of the filing of the note of issue. Under thesecircumstances, the motion clearly was untimely (see CPLR 3212 [a]; Miceli v State Farm Mut. Auto. Ins. Co.,3 NY3d 725 [2004]; Brill vCity of New York, 2 NY3d 648 [2004]). Since the third-party defendant failed to presentevidence of legitimate good cause for the delay in making the motion, the Supreme Courtproperly denied the motion without considering the merits (see CPLR 2004; Tower Ins. Co. of N.Y. v Razy Assoc.,37 AD3d 702 [2007]; Thompson v Leben Home for Adults, 17 AD3d 347 [2005]).Prudenti, P.J., Mastro, Angiolillo and Dickerson, JJ., concur.