| Azcona v Salem |
| 2008 NY Slip Op 02195 [49 AD3d 343] |
| March 13, 2008 |
| Appellate Division, First Department |
| Nelson Azcona et al., Appellants, v David Salem et al.,Respondents. |
—[*1] Thomas M. Bona, P.C., White Plains (Ezra Simon of counsel), for respondents.
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered January 12,2007, which granted defendants' motion for summary judgment, unanimously reversed, on thelaw, without costs, the motion denied and the matter remanded for further proceedings.
In granting defendants' belated summary judgment motion (see CPLR 3212 [a]),Supreme Court did not address the issue of whether defendants demonstrated good cause (see Miceli v State Farm Mut. Auto. Ins.Co., 3 NY3d 725 [2004]; Brillv City of New York, 2 NY3d 648 [2004]). In any event, as a matter of law, defendantsfailed to demonstrate good cause. Defendants claim that after the first note of issue was struck in2004, they did not learn that another note of issue had been filed until early May 2006, shortlybefore the 120-day period for moving for summary judgment was about to expire, when counselwas informed about an imminent pretrial conference, and that the instant motion was preparedand served as soon as possible. Defendants' counsel's bald assertion that he did not receive a copyof the note of issue is insufficient to rebut the presumption that service was complete uponmailing of the document to defendants' counsel by plaintiffs' counsel on January 3, 2006, asevinced by an affidavit of service (see Engel v Lichterman, 62 NY2d 943, 944 [1984];Matter of Kahoud [Rundell], 128 AD2d 531 [1987]). The legislatively imposeddeadline for filing summary judgment motions must be strictly followed, and courts may notexcuse a late motion, no matter how meritorious, upon a [*2]perfunctory claim of law office failure (see Crawford v Liz Claiborne, Inc., 45AD3d 284, 285-286 [2007]). Concur—Lippman, P.J., Andrias, Williams andMcGuire, JJ.