21st Century Pharm., Inc. v State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 51577(U))

Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion:

Upon review of the foregoing cited papers and after oral argument, Defendant’s Summary Judgment Motion (“motion sequence #3”) is DENIED.

In this action, Plaintiff 21st Century Pharmacy, Inc. (hereinafter “21st Century” or “Plaintiff”) seeks reimbursement of No-Fault benefits from Defendant State Farm Mutual Automobile Ins. Co. (hereinafter “State Farm” or “Defendant”) in the total amount of $1,529.00 for services rendered to its assignor, Aquiles Nunez. Defendant filed a timely answer to the complaint. Pursuant to CPLR § 3212, Defendant now moves for an order granting summary judgment. Defendant argues that Plaintiff’s complaint must be dismissed because Plaintiff’s [*2]assignor failed to appear for noticed Examinations Under Oath (“EUO’s”). Plaintiff opposes and argues that Defendant’s motion is untimely without “good cause” shown and must be denied regardless of the issues being raised.

Plaintiff states that they filed their Notice of Trial on August 4, 2020 and under CPLR § 3212(a), Defendant was required to move for summary judgment within 120-days. Defendant filed the motion on September 21, 2022, approximately 778-days later. Moreover, Plaintiff argues that Defendant has failed to make a showing of “good cause” for the delay that would allow the Court to consider an extension. In further opposition, Plaintiff proffers that the Court should not consider Defendant’s “good cause” rationale, as it was only raised for the first time in their reply papers.

Defendant, in their reply, claims that they were unaware that a Notice of Trial had been filed as there was no indication in the Court System ^[FN1] . Defendant argues that “good cause” is shown where there is a reasonable excuse for the delay, there is merit to the action and there is the absence of prejudice. Defendant maintains that they have satisfied all three elements and therefore, the Court should grant the extension, allow the summary judgment to be considered and ultimately granted.

The Court will address the merits of Plaintiff’s opposition and Defendant’s reply as it pertains to the timeliness of the instant motion. A determination on this issue must be resolved before addressing the merits of the summary judgment motion, as the Court will first need to grant an extension for the motion to be considered. Pursuant to CPLR § 3212:

“Any party may move for summary judgment in any action, after issue has been joined; provided however, that the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown.”

(CPLR § 3212[a][emphasis added]). In Brill v City of New York, the Court of Appeals established that “good cause in 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, 814 NE2d 431, 781 NYS2d 261 [2004]).

Defendant filed the instant motion on or about September 21, 2022. Based on the court records, Plaintiff filed their Notice of Trial on or about August 4, 2020. Defendant argues that they have established good cause for the delay and relies on the ruling in Adika v Dramatinos, 74 AD3d 848, 904 NYS2d 461 (2d Dept 2010). However, there are significant distinguishing facts. In Adika, the summary judgment motion was filed five days after the 120-day deadline. Here, Defendant filed their motion for summary judgment motion more than two years after the Notice of Trial was filed. Additionally, in Adika, “the New York State Unified Court System’s public [*3]Web site ^[FN2] incorrectly stated that the note of issue was filed five days after it was in fact filed” (Adika, 74 AD3d at 849). In the instant case, Defendant relies on the Court system website and eLaw. It should be noted that the Defendant submitted a case summary from October 2, 2021 that allegedly did not reflect that Plaintiff filed a Notice of Trial. In any event, the instant motion was filed almost a year after this review of the Court System’s website. In Defendant’s more recent review of the case (March 22, 2022), Counsel only relied on eLaw ^[FN3] and failed to refer to the Court System website. The Court concludes that Defendant did not use due diligence in reviewing the status of the case prior to filing their summary judgment motion.

In addition, the substantive body of Defendant’s motion failed to include the request for an extension or explain their “good cause” arguments for their delay. Defendant’s summary judgment motion only addressed the merits of the Plaintiff’s failure to appear for EUO’s. The “good cause” arguments were raised for the first time in Defendant’s reply. As such, Plaintiff did not have an opportunity to adequately oppose the new arguments and relief requested in a sur-reply (see Matter of Harleysville Ins. v Rosario, 17 AD3d 677, 792 N.Y.S.2d 912 [2d Dept 2005]).

Defendant’s motion for summary judgment (motion sequence #3) is DENIED. This matter is set down for a bench trial on November 14, 2025, at 9:30AM in Part 15.