Florczyc v. Stanley Stahl d/b/a Stahl Park Avenue Co. et al.

Florczyc v. Stanley Stahl d/b/a Stahl Park Avenue Co. et al.

As reported in the January 20, 2005 issue of the New York Law Journal, John F. Parker and Michael Rubin, on behalf of third-party defendant Safeway Environmental Corp., successfully defeated plaintiff’s Order to Show Cause to preclude Safeway’s summary judgment motion as untimely in a New York Labor Law personal injury case. After the completion of discovery, MCWG moved for summary judgment on behalf of Safeway to dismiss various Labor Law claims being asserted by plaintiff. Safeway made its motion 63 days after plaintiff filed the Note of Issue. Shortly thereafter, plaintiff moved by Order to Show Cause to preclude Safeway’s motion, claiming that the motion was untimely under the Kings County Uniform Civil Term Rules, which require that a party move for summary judgment within 60 days after the Note of Issue is filed. The general New York State rule, found in CPLR 3212(a), gives 120 days, but can be shortened by the court as in this case. Plaintiff argued that Safeway failed to show "good cause" for the purported late filing as required pursuant to Brill v. City of New York, 781 N.Y.S.2d 261 (2004). In response, Safeway argued that its motion was in fact timely, because plaintiff had served the Note of Issue on the parties via regular mail and, therefore, Safeway was entitled to five additional days in which to make its motion pursuant to CPLR 2103(b)(2). The Court denied plaintiff’s Order to Show Cause, holding that the requirement that a party show "good cause" pursuant to Brill for a late summary judgment motion only applies to motions made more than 120 days after the Note of Issue. Because Safeway’s motion was made well before the 120 day period, the Court held that Brill did not apply and that Safeway’s motion was in fact timely.