| DeFilippo v Miller |
| 2013 NY Slip Op 03294 [106 AD3d 770] |
| May 8, 2013 |
| Appellate Division, Second Department |
| Gary R. DeFilippo, Appellant, v Mitchell G. Milleret al., Respondents. |
—[*1] Connors & Connors, P.C., Staten Island, N.Y. (Michael J. Caufield of counsel), forrespondent Toto's South Shore Country Club, Ltd.
In an action, inter alia, to recover damages for assault and battery and negligentsupervision, the plaintiff appeals from an order of the Supreme Court, Richmond County(Minardo, J.), dated June 25, 2009, which granted that branch of the motion of thedefendant Mitchell G. Miller which was for summary judgment dismissing the complaintinsofar as asserted against him, granted the motion of the defendant Toto's South ShoreCountry Club, Ltd., for summary judgment dismissing the complaint insofar as assertedagainst it, and denied that branch of the plaintiff's cross motion which was pursuant toCPLR 2201 to stay all proceedings in the action pending determination of his appealfrom a judgment of conviction rendered in a related criminal action.
Ordered that the appeal from so much of the order as denied that branch of theplaintiff's cross motion which was pursuant to CPLR 2201 to stay all proceedings in theaction pending determination of his appeal of a judgment of conviction rendered in arelated criminal action is dismissed; and it is further,
Ordered that the order is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the respondent Toto's South ShoreCountry Club, Ltd.
In a decision and order dated November 14, 2012, this Court affirmed the judgmentof conviction in a related criminal action (see People v DeFilippo, 100 AD3d 767 [2012], lvdenied 20 NY3d 1060 [2013]). Thus, the plaintiff's contention that the SupremeCourt improvidently exercised its discretion in denying that branch of his cross motionwhich was to stay the instant action pending determination of that appeal has beenrendered academic.
The plaintiff contends that the Supreme Court erred in entertaining the defendants'respective motions for summary judgment, even though they were made outside of thestatutorily prescribed period for making such motions (see CPLR 3212 [a]).However, the Supreme Court properly entertained the motions, as the defendantsdemonstrated good cause for the delay (see [*2]Miceli v State Farm Mut.Auto. Ins. Co., 3 NY3d 725, 726-727 [2004]; Brill v City of New York, 2NY3d 648 [2004]). The defendants argued in their motions that the plaintiff'sconviction in a related criminal action, which was based on facts identical to the facts inthis civil action, barred him from relitigating the issue of liability in this action (see Maiello v Kirchner, 98AD3d 481, 482 [2012]; DaimlerChrysler Ins. Co. v Jenneman, 95 AD3d 928, 929[2012]; County of Suffolk v AllCounty Paving Corp., 66 AD3d 630, 632 [2009]; McDonald vMcDonald, 193 AD2d 590 [1993]). Since the judgment of conviction in the criminalaction was rendered shortly before the defendants made their motions, they could nothave made their motions any sooner. Under these circumstances, the Supreme Courtprovidently exercised its discretion in finding that good cause existed to entertain the latemotions for summary judgment (see Armentano v Broadway Mall Props., Inc., 48 AD3d493, 494 [2008]).
The plaintiff's contentions regarding a related civil action, in which he is a defendant,are not properly before this Court, as the order appealed from was limited to the instantaction. Mastro, J.P., Hall, Lott and Sgroi, JJ., concur.