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

990
CA 13-00453
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ.


COLLEEN O’BRIEN, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

LARRY J. BAINBRIDGE AND FEDEX GROUND PACKAGE
SYSTEM, INC., DEFENDANTS-APPELLANTS.


BURDEN, GULISANO & HICKEY, LLC, BUFFALO (PHILLIP GULISANO OF COUNSEL),
FOR DEFENDANTS-APPELLANTS.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Timothy
J. Drury, J.), entered June 11, 2012 in a personal injury action. The
order denied the motion of defendants for partial summary judgment
dismissing the complaint insofar as it alleges that plaintiff
sustained a serious injury under the permanent loss of use category of
Insurance Law § 5102 (d).

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

     Memorandum: In this personal injury action arising from a motor
vehicle accident, defendants appeal from an order denying their motion
for partial summary judgment dismissing the complaint insofar as it
alleges that plaintiff sustained a serious injury under the permanent
loss of use category of Insurance Law § 5102 (d). We conclude that
Supreme Court properly denied the motion as untimely. The complaint,
as amplified by the amended bill of particulars, alleged that
plaintiff sustained a serious injury under five different categories:
(1) significant disfigurement; (2) permanent loss of use of a body
organ, member, function or system; (3) permanent consequential
limitation of use of a body organ or member; (4) significant
limitation of use of a body function or system; and (5) a nonpermanent
injury or impairment that prevented plaintiff from performing
substantially all of the material acts constituting her usual and
customary daily activities for not less than 90 days during the 180
days immediately following the accident. After discovery, defendants
timely moved for summary judgment dismissing the complaint, including
the claim that plaintiff sustained a permanent loss of use of a body
organ, member, function or system (original motion). Although
plaintiff, in opposing the original motion, did not mention the
permanent loss of use claim, the court denied that motion in its
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                                                         CA 13-00453

entirety, thereby leaving intact all of plaintiff’s claims.

     Defendants moved for leave to reargue the original motion. In so
moving, however, defendants did not refer to the permanent loss of use
category; instead, their reargument motion was limited to the other
four categories of serious injury alleged in the amended bill of
particulars. The court granted reargument and, upon reargument,
granted defendants’ original motion in part by dismissing the claims
that plaintiff sustained a serious injury under the permanent
consequential and significant limitation of use categories. Although
defendants appealed from that part of the order denying, upon
reargument, the original motion with respect to the significant
disfigurement and 90/180-day claims, defendants did not raise in their
brief any contention concerning the permanent loss of use claim. On
that appeal, we agreed with defendants regarding the 90/180-day claim
but not regarding the significant disfigurement claim (O’Brien v
Bainbridge, 89 AD3d 1511, 1512-1513). Thus, in our decision, we
stated that “the issue of whether plaintiff’s scars constitute a
significant disfigurement should be decided by the trier of fact,
along with the remaining category of permanent loss of use” (id. at
1513 [emphasis added]).

     After the prior appeal, defendants moved for partial summary
judgment dismissing the permanent loss of use claim (second motion).
According to defendants, plaintiff had abandoned that claim when she
failed to oppose that part of defendants’ original motion concerning
that claim, and the court, through an oversight, neglected to dismiss
the claim in its initial order. The court denied the second motion as
untimely, and we now affirm.

     “Where . . . a court does not set a date by which summary
judgment motions must be made pursuant to CPLR 3212 (a), such a motion
must be made no later than 120 days after the filing of the note of
issue ‘except with leave of court on good cause shown’ ” (Matys v
Zuccala, 52 AD3d 1241, 1241, quoting CPLR 3212 [a]). Good cause in
the context of CPLR 3212 (a) “requires a showing of good cause for the
delay in making the motion—a satisfactory explanation for the
untimeliness—rather than simply permitting meritorious, nonprejudicial
filings, however tardy” (Brill v City of New York, 2 NY3d 648, 652).

     Here, the court did not set a deadline for the filing of summary
judgment motions, and the note of issue was filed on May 3, 2010.
Thus, pursuant to CPLR 3212 (a), the deadline for filing motions for
summary judgment was August 31, 2010. The motion at issue in this
appeal, i.e., the second motion, was filed on March 21, 2012, more
than 18 months after the deadline, and we agree with the court that
defendants failed to show good cause for the substantial delay.
Contrary to defendants’ assertions, plaintiff never “jettisoned” her
claim that she sustained a serious injury under the permanent loss of
use category, and the court did not inadvertently fail to address that
claim in its initial decision. In fact, the court directly addressed
the claim in its initial decision and, as noted, it denied defendants’
original motion in its entirety. Although defendants moved to reargue
the original motion, they failed in their reargument motion to mention
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                                                         CA 13-00453

the permanent loss of use claim. Thus, the court properly ignored
that claim in its decision and order. In any event, even if
defendants had contended in the prior appeal that the court should
have dismissed the permanent loss of use claim on reargument, which
they did not, such a contention would not have been properly before us
(see Ciesinski v Town of Aurora, 202 AD2d 984, 985).

     Under the circumstances, we conclude that the court properly
determined that defendants failed to establish good cause for the
untimely filing of the second motion. The second motion was not
necessitated by an oversight of the court, as defendants assert;
instead, it arose from defendants’ apparent misapprehension, when they
filed the reargument motion, that the permanent loss of use claim had
been dismissed by the court or abandoned by plaintiff.




Entered:   September 27, 2013                  Frances E. Cafarell
                                               Clerk of the Court
