Defendants C and BW raise the identical arguments in their cross motion to dismiss the complaint and all cross claims. The 120-day period for serving a motion for summary judgment expired on November 11, 2006. This cross motion was served on February 14, 2007, which was 214 days from the filing of the note of issue, and 94 days after the expiration of the 120-day period. Defendant’s claim that their cross motion is timely, therefore, is rejected. In Brill v City of New York, the Court of Appeals held that CPLR 3212(a) permitted a late summary judgment motion upon the showing of good cause, which requires a satisfactory explanation for the untimeliness rather than simply permitting meritorious, nonprejudicial filings, however tardy. No excuse at all, or a perfunctory excuse, cannot be good cause. The Appellate Division, Second Department, in applying Brill to late cross motions has taken two different approaches.
In Thompson v Leben Home for Adults, the court stated that in the absence of such a good cause showing, the court has no discretion to entertain even a meritorious, non-prejudicial cross motion for summary judgment. However, the Appellate Division, Second Department has also stated that a cross motion for summary judgment made after the expiration of the statutory 120-day period may be considered by the court, even in the absence of good cause, where a timely motion for summary judgment was made seeking relief nearly identical to that sought by the cross motion. An otherwise untimely cross motion may be made and adjudicated because a court, in the course of deciding the timely motion, may search the record and grant summary judgment to any party without the necessity of a cross motion (CPLR 3212[b]). The court’s search of the record, however, is limited to those causes of injury action or issues that are the subject of the timely motion.
Here, plaintiff seeks partial summary judgment on the issue of liability, on the grounds of collateral estoppel based on the RN summary judgment order, while defendants C and BW’ cross-move for summary judgment dismissing the complaint based upon the jury’s verdict in the Bronx County indemnification trial. Since defendants C and BW’ cross motion does not seek relief nearly identical to the relief sought by the plaintiff, and as they have not established good cause for their late cross injury motion, the cross motion is denied as untimely.
Defendant York’s cross motion for an order granting summary judgment dismissing all cross claims by defendants BW and C is untimely. The 120-day period for serving a motion for summary judgment expired on November 12, 2006. This cross motion was served on February 14, 2007, which was 214 days after the filing of the note of issue, and 94 days expiration of the 120-day limit set forth in CPLR 3212(a). Defendant York’s cross motion is based upon the jury verdict in the Bronx County action, which was rendered on September 7, 2006. Counsel asserts that as his law firm did not represent York in the indemnification trial, he was unable to obtain a copy of said transcript, prior to being served with the transcript as an exhibit on January 24, 2007. Counsel has failed to establish that any efforts were made to obtain either a copy of the verdict sheet or the trial transcript on behalf of his client York prior to the expiration of the 120-day period. The court, therefore, finds that as defendant York has failed to establish good cause for the delay, this cross motion is denied as untimely.
Turning now to plaintiff’s motion, the doctrine of collateral estoppel may be invoked here. Under the doctrine of collateral estoppel, a party is precluded from relitigating an issue which has been previously decided against him in a prior proceeding where he had a full and fair opportunity to litigate such issue. The two elements that must be satisfied to invoke the doctrine of collateral estoppel are that (1) the identical issue was decided in the prior action and is decisive in the present action, and (2) the party to be precluded from relitigating the issue had a full and fair opportunity to contest the prior issue. The policy against relitigation of adjudicated disputes is strong enough to bar a second accident action or proceeding even when further investigation indicates that the prior determination was erroneously made, whether due to the parties’ oversight or court error.