| Lennard v Khan |
| 2010 NY Slip Op 00482 [69 AD3d 812] |
| January 19, 2010 |
| Appellate Division, Second Department |
| Yohan Lennard, Appellant-Respondent, v Fazal Khan etal., Respondents, and Keith O. Prescod, Jr., et al., Appellants. |
—[*1] Martyn, Toher & Martyn, Mineola, N.Y. (Christine J. Hill of counsel), fordefendants-appellants. Theodore A. Stamas, Carle Place, N.Y. (Ira Cooper of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated April2, 2009, as granted the motion of the defendants Fazal Khan and Ace Towing, LLC, forsummary judgment dismissing the complaint insofar as asserted against them on the ground thathe did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), andthe defendants Keith O. Prescod, Jr., and Desiree Klass cross-appeal, as limited by their brief,from so much of the same order as denied, as untimely, their separate motion for summaryjudgment dismissing the complaint insofar as asserted against them.
Ordered that the order is reversed insofar as cross-appealed from by the defendants Keith O.Prescod, Jr., and Desiree Klass, on the law, on the facts, and in the exercise of discretion, and themotion of those defendants for summary judgment dismissing the complaint insofar as assertedagainst them is granted; and it is further,
Ordered that the order is affirmed insofar as appealed from by the plaintiff; and it is further,
Ordered that one bill of costs is awarded to the defendants.
In early 2007 the plaintiff commenced this action to recover damages for personal injuriesallegedly sustained as the result of an automobile accident. On November 13, 2008, the SupremeCourt issued an order requiring the plaintiff to undergo an independent medical examinationwithin 30 days of the order, and extending the time, in effect, to make summary judgmentmotions to 60 days from the date of the independent medical examination, "but no later than[January 27, 2009] whichever is sooner." The plaintiff's independent medical examinationoccurred on December 4, 2008, thus requiring submission of [*2]any summary judgment motions by January 27, 2009, the earliestof the possible deadlines.
By notice of motion dated January 22, 2009, the defendants Fazal Khan and Ace Towing,LLC (hereinafter the respondents), moved for summary judgment dismissing the complaintinsofar as asserted against them on the ground that the plaintiff did not sustain a serious injurywithin the meaning of Insurance Law § 5102 (d). The respondents served the plaintiff'scounsel with the summary judgment motion on January 23, 2009, and filed the motion with thecourt on February 11, 2009.
The defendants Keith O. Prescod, Jr., and Desiree Klass separately moved for the samerelief. They served the plaintiff's counsel with their motion papers on January 30, 2009, and filedthem with the court on March 2, 2009.
In support of their respective motions, the movants established their respective prima facieentitlements to judgment as a matter of law on the ground that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d). The plaintiff opposed bothmotions on the ground that they were untimely, but did not address the movants' arguments thathe did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Inreply, the respondents argued that their motion was timely under CPLR 2211 because it had beenserved on the plaintiff's counsel within the time period allotted. In an order dated April 2, 2009,the Supreme Court granted the respondents' motion as timely and since it was unopposed on themerits. The court also denied the separate motion of Prescod and Klass as untimely. Theseappeals ensued.
"A motion on notice is made when a notice of the motion or an order to show cause isserved" (CPLR 2211; see Rivera v GlenOaks Vil. Owners, Inc., 29 AD3d 560, 561 [2006]). Given that the respondents' motionwas served on the plaintiff's counsel by mail on January 23, 2009, four days before the January27, 2009, deadline, the Supreme Court correctly concluded that the respondents' motion wastimely.
Where one party makes a timely summary judgment motion, the court may properly consideran untimely summary judgment motion, provided the late motion is based on "nearly identical"grounds as the timely motion (Perfito vEinhorn, 62 AD3d 846, 847 [2009] [internal quotation marks omitted]; see Step-Murphy, LLC v B&B Bros. RealEstate Corp., 60 AD3d 841, 844-845 [2009]; Ianello v O'Connor, 58 AD3d 684 [2009]; Grande v Peteroy, 39 AD3d 590,591-592 [2007]; Miranda v Devlin, 260 AD2d 451, 452 [1999]). In effect, the "nearlyidentical" nature of the grounds supporting both motions serves as good cause sufficient topermit review on the merits of the untimely motion (Grande v Peteroy, 39 AD3d at 592)."Notably, the court, in the course of deciding the timely motion, is, in any event, empowered tosearch the record and award summary judgment to a nonmoving party" (see CPLR 3212[b]; Grande v Peteroy, 39 AD3d at 592).
Since the respondents' motion was already properly before the court, it improvidentlyexercised its discretion in refusing to consider the separate motion of Prescod and Klass, madeon identical grounds, on the ground that the separate motion was untimely made (see Joyner-Pack v Sykes, 54 AD3d727 [2008]; Grande v Peteroy, 39 AD3d at 591; Miranda v Devlin, 260AD2d 451 [1999]). Further, since the plaintiff did not challenge the movants' contentionsregarding serious injury, the separate motion should have been granted. Dillon, J.P., Florio, Halland Sgroi, JJ., concur.