DiBenedetto v. Lowe's Home Centers, Inc.

In an action to recover damages for personal injuries, the third-party defendant appeals from an order of the Supreme Court, Richmond County (Aliotta, J.), dated November 30, 2006, which denied his motion for summary judgment dismissing the third-party complaint. Ordered that the order is affirmed, without costs or disbursements. Although the note of issue was filed on April 27, 2006 the third-party defendant failed to move for summary judgment dismissing the third-party complaint until August 17, 2006, notwithstanding the fact that the court’s preliminary conference order expressly recited that such motions were to be made within 60 days of the filing of the note of issue. Under these circumstances, the motion clearly was untimely (see CPLR 3212 [a]; Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]; Brill v City of New York, 2 NY3d 648 [2004]). Since the third-party defendant failed to present evidence of legitimate good cause for the delay in making the motion, the Supreme Court properly denied the motion without considering the merits (see CPLR 2004; Tower Ins. Co. of N.Y. v Razy Assoc., 37 AD3d 702 [2007]; Thompson v Leben Home for Adults, 17 AD3d 347 [2005]). Prudenti, EJ., Mastro, Angiolillo and Dickerson, JJ., concur.