| Van Dyke v Skanska USA Civ. Northeast, Inc. |
| 2011 NY Slip Op 03587 [83 AD3d 1049] |
| April 26, 2011 |
| Appellate Division, Second Department |
| Eugene Van Dyke et al., Appellants, v Skanska USA CivilNortheast, Inc., Respondent. |
—[*1] Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Howard R. Cohen and Thomas Nossof counsel), for respondent.
In an action to recover damages for personal injures, etc., the plaintiffs appeal from so muchof an order of the Supreme Court, Queens County (Lebowitz, J.), dated September 10, 2010, asgranted the defendant's motion for summary judgment dismissing the complaint and, in effect,denied those branches of the plaintiffs' cross motion which were for summary judgment on itscause of action pursuant to Labor Law § 241 (6) and to compel discovery.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thedefendant's motion for summary judgment dismissing the complaint and substituting therefor aprovision denying the motion; as so modified, the order is affirmed insofar as appealed from,with costs to the plaintiffs.
The Supreme Court erred in entertaining the motion of the defendant for summary judgmentdismissing the complaint, which was made returnable over 30 days beyond the deadline fixed bythe Supreme Court in a so-ordered stipulation, where the defendant failed to demonstrate goodcause for the delay (see CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648,652 [2004]; Anderson v Kantares, 51 AD3d 954 [2008]; Tower Ins. Co. of N.Y. vRazy Assoc., 37 AD3d 702, 703-704 [2007]; Espejo v Hiro Real Estate Co., 19AD3d 360, 361 [2005]; see also Jackson v Jamaica First Parking, LLC, 49 AD3d 501[2008]; Smith v Nameth, 25 AD3d 599, 600 [2006]). Moreover, that branch of theplaintiffs' subsequent cross motion which was for summary judgment did not provide therequisite good cause to review the defendant's untimely motion because the plaintiffs failed todemonstrate good cause for their tardy cross motion, inter alia, for summary judgment (cf.Step-Murphy, LLC v B&B Bros. Real Estate Corp., 60 AD3d 841, 844 [2009];Rodriguez v Sequoia Prop. Mgt. Corp., 24 Misc 3d 822, 824 [2009]). The discoverywhich the plaintiffs claimed was outstanding was not relevant to the plaintiffs' cross motion, interalia, for summary judgment and therefore was not a basis to establish good cause for the untimelycross motion (see Anderson v Kantares, 51 AD3d 954 [2008]; Tower Ins. Co. of N.Y.v Razy Assoc., 37 AD3d at 703-704; Jackson v Jamaica First Parking, LLC, 49AD3d 501 [2008]; cf. Step-Murphy v B&B Bros. Real Estate Corp., 60 AD3d at 844;Rodriguez v Sequoia Prop. Mgt. Corp., 24 Misc 3d at 824). Accordingly, the SupremeCourt erred [*2]in reaching the merits of the defendant's motionfor summary judgment (see Brill v City of New York, 2 NY3d at 650; Anderson vKantares, 51 AD3d 954 [2008]).
The plaintiffs' remaining contention is without merit. Dillon, J.P., Florio, Chambers andMiller, JJ., concur.