Foo-Lu Co. v Rojas, 2018 NY Slip Op 02772 [2d Dept 2018]
The Supreme Court, upon denying the plaintiffs' and Chao's initial motion for summary judgment, improvidently exercised its discretion by, in effect, granting the moving parties leave to renew. The defect in the initial motion was not merely technical but substantive, inasmuch [*2]as the moving parties failed, without explanation, to submit evidence, in admissible form, establishing, inter alia, their ownership of the subject mortgage note or the existence of Rojas' default. Such evidence could, and should, have been submitted on the original summary judgment motion (see Vinar v Litman, 110 AD3d 867), and sufficient cause was not shown to warrant entertaining a second motion (cf. Varsity Tr. v Board of Educ. of City of N.Y., 300 AD2d 38, 39). Therefore, the order dated April 7, 2015, must be modified accordingly, and the provision of the order dated November 23, 2015, upon renewal, granting the second summary judgment motion must be vacated. In light of our determination with respect to the order dated April 7, 2015, the appeal from that portion of the order dated November 23, 2015, must be dismissed.
The Supreme Court also erred in awarding summary judgment to Fong. It is undisputed that Fong's motion was untimely, having been made 309 days after the filing of the note of issue, or 189 days after the expiration of the 120-day statutory deadline (see CPLR 3212[a]; Nationstar Mtge., LLC v Weisblum, 143 AD3d 866; Giambona v Hines, 104 AD3d 811). Even assuming that the court granted an oral application by Fong for leave to file the late motion, as Fong's counsel represented in his papers, such determination would have been an improvident exercise of discretion under the circumstances presented, since leave can be granted only upon a showing of good cause "for the delay in making the motion" (Brill v City of New York, 2 NY3d 648, 652), and no such showing appears in the record (see Nationstar Mtge., LLC v Weisblum, 143 AD3d at 869; cf. Matter of Gilmore, 131 AD3d 1058). Fong's failure to establish good cause for his delay warranted denial of the motion, "without consideration of the merits thereof" (Jones v City of New York, 130 AD3d 686, 687; see Nationstar Mtge., LLC v Weisblum, 143 AD3d at 869; Carrasco v Weissman, 120 AD3d 534, 536; Giambona v Hines, 104 AD3d at 812).
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