                SUPREME COURT OF THE STATE OF NEW YORK
                   Appellate Division, Fourth Judicial Department

696
CA 12-00130
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, AND MARTOCHE, JJ.


PEGGY D. LAPP, PLAINTIFF-RESPONDENT,

                     V                                     MEMORANDUM AND ORDER

MINNESOTA MINING & MANUFACTURING COMPANY, INC.,
DEFENDANT-APPELLANT.


HODGSON RUSS LLP, BUFFALO (HUGH M. RUSS, III, OF COUNSEL), FOR
DEFENDANT-APPELLANT.

RICHARD J. LIPPES & ASSOCIATES, BUFFALO (RICHARD J. LIPPES OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Wyoming County (Mark
H. Dadd, A.J.), entered October 25, 2011 in a personal injury action.
The order denied defendant’s motion for summary judgment dismissing
plaintiff’s complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she sustained as a result of her alleged exposure to toxins
while working with a machine that was manufactured by defendant.
Plaintiff filed a note of issue on September 1, 2010 and, in May 2011,
defendant moved for summary judgment dismissing the complaint.
Supreme Court properly denied the motion on the grounds that it was
untimely (see CPLR 3212 [a]), and that defendant did not meet its
burden of demonstrating good cause for its delay in bringing the
motion (see Brill v City of New York, 2 NY3d 648, 652; Jones v Town of
Le Ray, 28 AD3d 1177, 1178). In light of our conclusion that the
court properly denied defendant’s motion, we do not address the
remaining issues raised by defendant.




Entered:   June 15, 2012                                Frances E. Cafarell
                                                        Clerk of the Court
