| Greenpoint Props., Inc. v Carter |
| 2011 NY Slip Op 02625 [82 AD3d 1157] |
| March 29, 2011 |
| Appellate Division, Second Department |
| Greenpoint Properties, Inc., Appellant, v Jeffrey Carter,Respondent. |
—[*1] Piazza, D'Addario & Frumin, Brooklyn, N.Y. (Lucille Frumin of counsel), forrespondent.
In an action to recover a real estate brokerage commission, the plaintiff appeals from an orderof the Supreme Court, Kings County (Schneier, J.), dated April 9, 2010, which, in effect, grantedthat branch of the defendant's motion which was for leave to serve and file a late motion forsummary judgment, and thereupon granted that branch of the defendant's motion which was forsummary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, that branch of the defendant'smotion which was for leave to serve and file a late motion for summary judgment is denied andthe motion is otherwise denied as academic.
The Supreme Court erred by, in effect, granting that branch of the defendant's motion whichwas for leave to serve and file a late motion for summary judgment, since the defendant failed todemonstrate good cause for not timely serving the motion as required by CPLR 3212 (a) (seeBrill v City of New York, 2 NY3d 648 [2004]). "Significant outstanding discovery may, incertain circumstances, constitute good cause for the delay in making a motion for summaryjudgment" (Tower Ins. Co. of N.Y. v Razy Assoc., 37 AD3d 702, 703 [2007]; seeGrochowski v Ben Rubins, LLC, 81 AD3d 589 [2011]; Kung v Zheng, 73 AD3d862, 863 [2010]; Richardson v JAL Diversified Mgt., 73 AD3d 1012, 1012-1013 [2010];McArdle v 123 Jackpot, Inc., 51 AD3d 743, 745 [2008]; Sclafani v WashingtonMut., 36 AD3d 682, 682 [2007]). Here, however, contrary to the defendant's contention, thediscovery outstanding at the time the note of issue was filed was not essential to his motion(see Tower Ins. Co. of N.Y. v Razy Assoc., 37 AD3d at 703). In the absence of ashowing of good cause for the delay in filing a motion for summary judgment, "the court has nodiscretion to entertain even a meritorious, nonprejudicial motion for summary judgment"(John P. Krupski & Bros., Inc. v Town Bd. of Town of Southold, 54 AD3d 899, 901[2008]; see Brill v City of New York, 2 NY3d at 652). Accordingly, the Supreme Courtshould have denied that branch of the defendant's motion which was for leave to serve and file alate motion for summary judgment, and otherwise denied the motion as academic.
In light of our determination, we do not reach the parties' remaining contentions. Florio, J.P.,Dickerson, Leventhal and Belen, JJ., concur.