Ainsworth M. Bennett v. St. John's Home

This memorandum is uncorrected and subject to revision before publication in the New York Reports. ----------------------------------------------------------------- No. 211 SSM 17 Ainsworth M. Bennett, &c., Appellant, v. St. John's Home et al., Respondents. Submitted by David E. Woodin, for appellant. Submitted by David H. Fitch, for respondents. * * * * * * * * * * * * * * * * * On review of submissions pursuant to section 500.11 of the Rules, order affirmed, with costs, and certified question not answered as unnecessary. As the issue of the timeliness under CPLR 3212(a) of defendants' summary judgment motion was not preserved in Supreme Court, the Court of Appeals lacks power to review either the Appellate Division's exercise of its discretion to reach the issue, or the issue itself (see Hecker v State of New York, 20 NY3d 1087 [2013]). On the remaining issue presented, the Appellate Division properly held that defendants were entitled to summary judgment. Chief Judge Lippman and Judges Pigott, Rivera, Abdus-Salaam and Fahey concur. Judge Stein took no part. Decided November 23, 2015