Cathey v. Gartner

Feb 14, 2005
Versions:15 A.D.3d 435
790 N.Y.S.2d 200
2005 N.Y. App. Div. LEXIS 1660

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Weiss, J.), dated November 18, 2003, which granted the defendants’ motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

The Supreme Court‘s order, which was issued before the ruling of the Court of Appeals in Brill v City of New York (2 NY3d 648 [2004]), erroneously granted the defendants’ motion for summary judgment. The motion was made more than two months after the statutory deadline (i.e., 120 days from the date the note of issue was filed) (see CPLR 3212 [a]), and the defendants’ perfunctory claims of unspecified clerical inadvertence and reassignment of counsel were insufficient to constitute good cause for the delay (see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]; Brill v City of New York, supra; Sanango v Generoso, 13 AD3d 349 [2004]; Gibbs v McRide Cab Co., 10 AD3d 671 [2004]; Thompson v New York City Bd. of Educ., 10 AD3d 650 [2004]). Krausman, J.P., Mastro, Spolzino and Fisher, JJ., concur.