| Parker v LIJMC-Satellite Dialysis Facility |
| 2012 NY Slip Op 01225 [92 AD3d 740] |
| February 14, 2012 |
| Appellate Division, Second Department |
| Sarah R. Parker, Plaintiff, v LIJMC-Satellite DialysisFacility et al., Defendants. Hunter Ambulance, Inc., Third-PartyDefendant-Appellant. |
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In an action to recover damages for medical malpractice and wrongful death, the third-partydefendant appeals, as limited by its brief, from so much of an order of the Supreme Court,Queens County (O'Donoghue, J.), dated June 21, 2011, as denied that branch of its motion whichwas, in effect, for leave to serve and file a late motion for summary judgment.
Ordered that the order is reversed insofar as appealed from, on the facts and in the exercise ofdiscretion, without costs or disbursements, and that branch of the third-party defendant's motionwhich was, in effect, for leave to serve and file a late motion for summary judgment is granted.
On October 17, 2007, the plaintiff commenced this action to recover damages for medicalmalpractice and wrongful death against LIJMC-Satellite Dialysis Facility (hereinafter LIJMC)and St. John's Episcopal Hospital (hereinafter St. John's). The plaintiff served a verifiedcomplaint in April 2008.
In August 2008 a preliminary conference was held. According to a preliminary conferenceorder, discovery was to be completed by February 2, 2009, and the plaintiff was to file a note ofissue by October 9, 2009. The deadline by which summary judgment motions were to be filedwas set for no later than 120 days after the filing of the note of issue. Discovery, however, wasnot completed by February 2, 2009, and an order was issued at a compliance conference settingforth new discovery deadlines. Despite the new discovery schedule, the plaintiff still had to fileher note of issue by October 2009. In September 2009 the plaintiff filed her note of issue andcertificate of readiness for trial. However, discovery, including all depositions, remainedoutstanding. At a conference held on March 8, 2010, the Supreme Court extended the time thatthe parties could file a motion for summary judgment to May 19, 2010. In the interim, onFebruary 19, 2010, St. John's commenced a third-party action seeking contribution andindemnification against the third-party defendant, Hunter Ambulance, Inc. (hereinafter Hunter).In March 2010, after the date on which the time to file a motion for summary judgment wasextended to May 19, 2010, Hunter served an answer to the third-party complaint, with discoverydemands. Hunter was not made aware that the plaintiff had filed her note of issue in September2009 until Hunter received a notice of motion by LIJMC for summary judgment dismissing thecomplaint insofar as asserted against it in May 2010. At the time LIJMC made that motion,Hunter had yet to receive any responses to its discovery demands. A compliance conference washeld on February 1, 2011, at which dates were set for conducting outstanding depositions. Duringthat conference, Hunter and St. John's requested that the time to move for summary judgment beextended. The Supreme Court denied those requests.[*2]
On February 14, 2011, Hunter moved, in effect, for leaveto serve and file a late motion for summary judgment, or, in the alternative, to sever thethird-party action from the main action. St. John's did not oppose that branch of Hunter's motionwhich was, in effect, for leave to serve and file a late motion for summary judgment, and theplaintiff did not oppose the motion. In an order dated June 21, 2011, the Supreme Court, interalia, denied Hunter's motion, noting that it had already granted an extension of the deadline bywhich the parties could move for summary judgment at the conference held on March 8, 2010.
Hunter established good cause in support of that branch of its motion which was, in effect,for leave to serve and file a late motion for summary judgment, since there was significantdiscovery outstanding at the time the note of issue was filed and it had yet to receive anydiscovery by the deadline by which motions for summary judgment were permitted (see Brill v City of New York, 2 NY3d648, 652 [2004]; Grochowski v BenRubins, LLC, 81 AD3d 589, 591 [2011]; Richardson v JAL Diversified Mgt., 73 AD3d 1012, 1012-1013[2010]; Kung v Zheng, 73 AD3d862, 863 [2010]; Abdalla v MazlTaxi, Inc., 66 AD3d 803, 804 [2009]; Jones v Grand Opal Constr. Corp., 64 AD3d 543, 544 [2009]).Furthermore, the third-party action was not commenced until February 2010, and issue was notjoined as to Hunter until March 2010, which was only approximately two months before the timeto move for summary judgment would expire. Hunter also established good cause to serve andfile a late motion for summary judgment by showing that it was not even aware that the plaintiffhad been deposed or that the plaintiff's note of issue had been filed when the time by which tomove for summary judgment had expired (see Brill v City of New York, 2 NY3d at 652;see e.g. Simpson v Trace Equip.Corp., 59 AD3d 1140, 1141 [2009]).
Accordingly, that branch of Hunter's motion which was, in effect, for leave to serve and file alate motion for summary judgment should have been granted. Rivera, J.P., Dickerson, Chambersand Austin, JJ., concur.