| Derby v Bitan |
| 2011 NY Slip Op 08322 [89 AD3d 891] |
| November 15, 2011 |
| Appellate Division, Second Department |
| Colleen Derby, Appellant, v Fabian Bitan,Respondent. |
—[*1] Aaronson Rappaport Feinstein & Deutsch, LLP, New York, N.Y. (Elliott J. Zucker of counsel),for respondent.
In an action to recover damages for medical malpractice, lack of informed consent, and breach ofcontract, the plaintiff appeals from an amended order of the Supreme Court, Dutchess County(Pagones, J.), dated August 26, 2010, which granted the defendant's motion for summary judgmentdismissing the complaint.
Ordered that the amended order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is denied.
The plaintiff filed a note of issue on March 15, 2010, and the defendant moved for summaryjudgment dismissing the complaint on July 14, 2010. The plaintiff opposed the defendant's motion onthe ground that it was untimely. The Supreme Court determined that the motion was timely andthereupon, granted the motion. We reverse.
CPLR 3212 (a) provides that a motion for summary judgment may not be made more than 120days after the filing of the note of issue "except with leave of court on good cause shown." Here,contrary to the defendant's contention, his motion for summary judgment was made 121 days after thenote of issue was filed and, therefore, it was untimely (see CPLR 3212 [a]; see alsoGeneral Construction Law § 20). Since the defendant did not seek leave of the court, andfailed to offer any reason for the delay, there was no "leave of court on good cause shown," as requiredby CPLR 3212 (a), and the defendant's motion should have been denied without consideration of themerits (see Miceli v State Farm Mut. Auto.Ins. Co., 3 NY3d 725, 726-727 [2004]; Brill v City of New York, 2 NY3d 648, 652 [2004]; Lyons v Donnelly, 54 AD3d 393[2008]; Lofstad v S & R Fisheries, Inc.,45 AD3d 739, 743 [2007]; Jones vRicciardelli, 40 AD3d 936, 936 [2007]).
The plaintiff's contention regarding recusal is not properly before this Court (see Ferdinand v Ferdinand, 56 AD3d604, 604 [2008]; Oparaji vScheiner, 50 AD3d 753, 754 [2008]).
The parties' remaining contentions either are without merit or need not be addressed in light of theforegoing determination. Dillon, J.P., Dickerson, Chambers and Miller, JJ., concur.