Rationale for Allowing a Late Motion for Summary Judgment When It Is Identical in Substance to a Timely Motion for Summary Judgment Made by Another Party Explained

The Second Department determined an untimely motion for summary judgment should not have been granted.  The court explained that an untimely motion may be entertained when it is identical in substance to a timely summary judgment motion made by another party in the action.  But that was not the case here.  The timely motion made by the MTA defendants, who were deemed not liable, did not determine the liability of the LIPA defendants.  Therefore, plaintiff’s untimely motion for summary judgment against the LIPA defendants could not “rely” on the motion made by the MTA defendants:

The plaintiff’s motion for summary judgment on the issue of liability was made more than 90 days after the filing of the note of issue, in violation of the terms of a certification order requiring motions for summary judgment to be filed within 90 days of the filing of a note of issue (see CPLR 3212[a]…). Although an untimely motion or cross motion for summary judgment may be considered by the court, in the exercise of its discretion, where a timely motion for summary judgment was made on nearly identical grounds …, that rule did not apply here. The reason why an untimely motion for summary judgment may be considered if another party made a motion on nearly identical grounds is that, pursuant to CPLR 3212(b), the court has the authority, on a motion for summary judgment, to search the record and award relief to a nonmoving party … . In the instant case, the MTA defendants, the original movants, established as a matter of law that they were not at fault in the happening of the accident. However, the fact that the MTA defendants were not at fault in the happening of the accident did not mean that the LIPA defendants were at fault and, therefore, that the plaintiff was entitled to summary judgment against the LIPA defendants. Accordingly, the plaintiff’s motion for summary judgment on the issue of liability against the LIPA defendants should have been denied as untimely.  Williams v Wright, 2014 NY Slip Op 05172, 2nd Dept 7-9-14