| Finger v Saal |
| 2008 NY Slip Op 09027 [56 AD3d 606] |
| November 18, 2008 |
| Appellate Division, Second Department |
| Dorothy M. Finger et al., Respondents, v Elias Saal et al.,Appellants. (And a Third-Party Action.) (Appeal No. 1.) Dorothy M. Finger et al., Appellants, vElias Saal et al., Respondents. (And A Third-Party Action.) (Appeal Nos. 2 and3.) |
—[*1] Finger & Finger, a Professional Corporation, White Plains, N.Y. (Carl L. Finger of counsel),for respondents on appeal No. 1 and appellants on appeal Nos. 2 and 3.
In an action, inter alia, to recover damages for trespass and nuisance, (1) the defendantsappeal from an order of the Supreme Court, Westchester County (Nastasi, J.), entered June 26,2007, which denied, as untimely, their separate cross motion for summary judgment dismissingthe complaint, (2) the plaintiffs appeal, as limited by their brief, from so much of an order of thesame court, also entered June 26, 2007, as denied their cross motion for summary judgment onthe issue of liability on the causes of action to recover damages for trespass and for a permanentinjunction, and (3) the plaintiffs appeal from stated portions of a third order of the same court,also entered June 26, 2007.
Ordered that the appeal by the plaintiffs from the third order entered June 26, 2007 isdismissed as abandoned, without costs or disbursements; and it is further,
Ordered that the first order entered June 26, 2007 is affirmed, without costs or [*2]disbursements; and it is further,
Ordered that the second order entered June 26, 2007 is affirmed insofar as appealed from,without costs or disbursements.
The Supreme Court set a deadline for the making of motions for summary judgment in thisaction, and fixed the deadline at 30 days following the date of the filing of a note of issue (seeCPLR 3212 [a]). The defendants'separate cross motion for summary judgment dismissing thecomplaint was made more than 30 days after the filing of the note of issue. Since the defendantsdid not establish "good cause" for the delay, the Supreme Court properly denied the separatecross motion, on the basis of untimeliness alone, without addressing the merits (see Brill vCity of New York, 2 NY3d 648, 654 [2004]; Kennedy v Bae, 51 AD3d 980, 981[2008]; Milano v George, 17 AD3d 644, 645 [2005]).
In support of their timely cross motion for summary judgment on the issue of liability on thecauses of action to recover damages for trespass and for a permanent injunction, the plaintiffssubmitted the affirmation of the plaintiff Dorothy Finger, who is an attorney. The Supreme Courtproperly disregarded the affirmation since, in her capacity as a plaintiff with personal knowledgeof the facts underlying the dispute, she should have submitted an affidavit (see CPLR2106; LaRusso v Katz, 30 AD3d 240, 243 [2006]; Samuel & Weininger v Belovin &Franzblau, 5 AD3d 466 [2004]). This deficiency rendered the plaintiffs' moving papersinsufficient to support the relief requested (see Seven Acre Wood St. Assoc. v Town ofBedford, 302 AD2d 511 [2003]).
The plaintiffs' separate appeal from so much of the third order entered June 26, 2007 asgranted that branch of the defendants' motion which was pursuant to CPLR 4102 (e) for anextension of time to file a demand for a jury trial must be dismissed as abandoned, since, in theirbrief, they failed to raise any argument with respect to the granting of that branch of thedefendants' motion and they did not seek reversal of that portion of the order (see Andre vCity of New York, 47 AD3d 605, 606 [2008]). Skelos, J.P., Angiolillo, Balkin andChambers, JJ., concur.