| Brewi-Bijoux v City of New York |
| 2010 NY Slip Op 04535 [73 AD3d 1112] |
| May 25, 2010 |
| Appellate Division, Second Department |
| Monica Brewi-Bijoux, Appellant, v City of New York etal., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Leonard Koerner and RonaldE. Sternberg of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from a judgmentof the Supreme Court, Queens County (Kerrigan J.), entered November 18, 2008, which, uponthe granting of the defendants' motion, in effect, for summary judgment dismissing thecomplaint, is in favor of the defendants and against her dismissing the complaint.
Ordered that the judgment is reversed, on the law, with costs, the defendant's motion isdenied, and the complaint is reinstated.
In 2001 the plaintiff commenced this action to recover damages for injuries she allegedlysustained during the course of her employment as a special education teacher. On January 26,2007, a note of issue was filed. On October 24, 2008, just before jury selection, the defendantsmoved, in effect, for summary judgment dismissing the complaint. The Supreme Court grantedthe motion. We reverse.
Initially, we note that while the defendants characterized their motion as one for in liminerelief to dismiss the complaint for failure to establish a prima facie case, the record reveals thatthe motion actually was one for summary judgment. "[A] motion in limine is an inappropriatesubstitute for a motion for summary judgment" (Rondout Elec. v Dover Union Free SchoolDist., 304 AD2d 808, 810-811 [2003]; see Rivera v City of New York, 306 AD2d456, 457 [2003]). Moreover, the Supreme Court improvidently exercised its discretion inconsidering this late motion since the defendants failed to offer any excuse for their failure totimely move for summary judgment (see CPLR 3212 [a]; Brill v City of NewYork, 2 NY3d 648 [2004]; Nobile v Town of Hempstead, 17 AD3d 647 [2005];Clermont v Hillsdale Indus., 6 AD3d 376, 377 [2004]). Such failure warrants denial ofthe motion without consideration of the merits thereof (see Miceli v State Farm Mut. Auto.Ins. Co., 3 NY3d 725 [2004]; Rivera v City of New York, 306 AD2d 456 [2003]).Accordingly, we reinstate the complaint.
In view of our determination, we need not reach the parties' remaining contentions. Covello,J.P., Santucci, Angiolillo and Dickerson, JJ., concur.