Plaintiff commenced this action in the Supreme Court of Bronx County for personal injuries allegedly sustained in a motor vehicle accident which occurred on August 18, 1999. On February 15, 2002 the Supreme Court transferred the action to the Civil Court pursuant to §325(d) of the Civil Practice Law & Rules ("CPLR")

Defendant Daniel Santos now moves for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a "serious injury" as defined in any of the categories found in §5102(d) of the Insurance Law.

Plaintiff's opposition is premised solely on the procedural ground that this motion for summary judgment, first noticed to be heard on December 4, 2003, is untimely as two years have elapsed since Note of Issue was filed on November 13, 2001 in Supreme Court.

Section 3212(a) of the CPLR states that motions for summary judgment "shall be made no later than 120 days after the filing of the note of issue, except with leave of court on good cause shown." Defendant does not dispute that Note of Issue was filed in Supreme Court on November 13, 2001, or that the action was transferred on February 15, 2002 to Civil Court. Apparently, the transfer was unbeknownst to defendant and he served and filed a motion for summary judgment in Supreme Court on threshold grounds in March 2002, within the 120 days after the filing of the Note of Issue. At this juncture defendant urges the court to consider dismissal of the action on the ground that his prior motion on serious injury/threshold grounds was served timely in March 2002, but that it was "returned by the court because the motion was incorrectly served in Supreme Court" [¶4 of the affirmation]. Additionally, defendant contends that summary judgment should be entertained "in the interests of justice and in the absence of prejudice to the plaintiff" [¶5 of the affirmation].

The first issue before the court is how the transfer of the action in February 2002 to Civil Court affected the filing of the Note of Issue in Supreme Court. Section 208.15 of the Uniform [*2]Civil Rules of the New York City Civil Court ("Rules") reads:

Actions transferred from the Supreme Court to the Civil Court of the City of New York shall be placed in such order and relative position on the appropriate calendars that they will be reached for trial insofar as practicable as if a notice of trial had been filed in the Civil Court of the City of New York for the same date as that for which the note of issue was filed in the Supreme Court.

Having found that the motion is untimely as beyond the 120 days set forth in CPLR 3212(a), the second issue is whether the court may exercise its discretion and entertain defendant's motion for summary judgment for good cause.

Subsequent to the submission of the instant motion the Court of Appeals decided the case of Brill v. City of New York, 2 NY3d 648 (2004), 781 NYS2d 346, 2004 WL 1263754 (June 10, 2004). Brill holds that absent "good cause" this Court no longer has discretion to decide an untimely summary judgment:

We conclude 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, non-prejudicial filings, however tardy. That reading is supported by the language of the statute - only the movant can show good cause - as well as by the purpose of the amendment to end the practice of eleventh-hour summary judgment motions. No excuse at all, or a perfunctory excuse, cannot be "good cause."

In support of the instant motion first noticed to be heard in December 2003, defendant fails to present "good cause" why he delayed almost two years from February 15, 2002 when the action was transferred, or from March 2002 when the first motion for summary judgment was improperly filed in Supreme Court. Indeed, defendant fails to submit any reason whatsoever for the delay in moving for summary judgment on serious injury/threshold grounds, and instead urges the court to entertain summary judgment "in the interests of justice and in the absence of prejudice to the plaintiff". These grounds do not constitute "good cause" as mandated by Brill, and instead, are grounds which Brill affirmatively rejects as constituting "good cause".

For the foregoing reasons, the court declines to entertain defendant's motion for summary judgment as untimely pursuant to CPLR 3212(a), and therefore, summary judgment is denied.

In light of the foregoing, the court need not address the insufficiency of plaintiff's submission in opposition.

Dated: Bronx, New York [*3]

October 4, 2004

__________________________

JULIA I. RODRIGUEZ, J.C.C.