In this action to recover damages for breach of contract, the defendant moves for summary judgment dismissing the complaint. The plaintiff, appearing pro se, identifies the papers he submits in response to the defendant's motion as a cross motion, but such submission is in actuality merely an opposition to the defendant's motion and the court treats it as such. The plaintiff submits a reply.

In his complaint, the plaintiff alleges that he was the tenant of a gasoline station located at 139 Jericho Turnpike, Floral Park, New York, from July 16, 2001 through May 2002. The plaintiff further alleges that during that time, he purchased gasoline from the defendant upon the defendant's promise to provide a "running consideration" rebate. According to the plaintiff, the defendant breached this agreement. The plaintiff subsequently commenced the instant action in February 2005 seeking $15,000.00 in damages.

The plaintiff submitted to a deposition held on November 2, 2005. Thereafter, the defendant served a Notice of Discovery and Inspection upon the plaintiff which included, among other things, a request for certain written contract proposals. The plaintiff had alleged the existence of these proposals at his deposition. Upon receiving no response to the discovery demands despite a demand letter therefor, in August 2007 the defendant moved, pursuant to CPLR 3124 and 3126, for an order compelling discovery and/or dismissing the complaint. In September 2007, the plaintiff filed a document purported to be a Note of Issue and a Certificate of Readiness for Trial. Attached to such document was a number of exhibits. [*2]

In October 2007 the defendant moved to vacate the plaintiff's purported note of issue, which, as will be discussed infra, can effectively be deemed a notice of trial. On November 1, 2007, the court (Janowitz, J.) issued a decision which denied the defendant's motion to dismiss the complaint/to compel discovery. The defendant moved for reargument, and in a decision and order dated July 29, 2008, the court (Janowitz, J.), granted leave to reargue the prior decision. Upon granting reargument, the court attempted to resolve numerous outstanding discovery issues, which, in light of the filing of the notice of trial, should not have remained outstanding. While the court deemed the exhibits attached to the notice of trial to be a response to the defendant's discovery demands, the court nevertheless directed the plaintiff, in effect, to fully comply with the defendant's demands by directing the plaintiff to produce certain specified documents within 20 days of the date of the decision; the court's decision also provided that if the plaintiff did not produce the documents within such time, the plaintiff would be precluded from introducing such documents at trial. Further, the court directed the clerk to schedule the matter for trial. Neither the November 2007 nor the July 2008 decisions directly addressed the defendant's separately filed motion to vacate the notice of trial, and such motion remains outstanding.

It is in this context that the court now addresses the defendant's motion for summary judgment dismissing the complaint. However, before the substantive merits of such motion can be reached, the issue of whether the defendant's motion is timely must be addressed. Pursuant to CPLR 3212(a), if no date is set by the court, a motion for summary judgment "shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave on good cause shown." In addressing the timeliness issue, the defendant essentially concedes that it filed its motion well beyond 120 days after the defendant filed his notice of trial in September 2007. Nevertheless, the defendant contends, in effect, that since the plaintiff was not required to file a notice of trial by virtue of his appearing pro se (see UDCA §1301), the notice of trial is therefore "inconsequential" in this matter and the defendant's motion cannot be deemed untimely. Implicit in the defendant's contention is the presumption that the time restriction set forth in CPLR 3212(a) applies to matters filed in this court. This threshold presumption will be addressed first.

CPLR 3212(a) specifically refers only to the note of issue, not to the notice of trial that is utilized in district courts, city courts, and the Civil Court of the City of New York. Nevertheless, a notice of trial is the functional equivalent of the note of issue, and accordingly, the filing of the notice of trial starts the 120 day period within which a motion for summary judgment must be filed in this court (see Chimbay v. Palma, 14 Misc 3d 139A [App Term 2d Dept 2007] [imposing the 120 day time restriction upon the filing of summary judgment motions pursuant to CPLR 3212[a] in the Civil Court of the City of [*3]New York from the filing of the notice of trial since the notice of trial is the "Civil Court equivalent of the note of issue"]). In the instant matter, while the defendant correctly notes that the pro se plaintiff was not required to file a notice of trial (see UDCA §1301), the fact remains that he did do so. As such, the time restriction imposed by CPLR 3212(a) is applicable in the instant matter, and the 120 day window within which either party was required to file a motion began to run at the time the plaintiff filed his notice of trial.

Thus, inasmuch the defendant correctly concedes that its motion for summary judgment was made well beyond the 120 day window, it became incumbent upon the defendant to make a good cause showing for its failure to timely file its motion in order for the court to entertain the motion (see CPLR 3212[a]; Miceli v. State Farm Mut. Auto Ins. Co., 3 NY3d 725 [2004]; Brill v. City of New York, 2 NY3d 648 [2004]). For the reasons stated above, the court finds that the defendant's explanation as to why the court should disregard the untimeliness of the summary judgment motion (i.e., that the plaintiff's notice of trial is "inconsequential" since, as a pro se litigant, he was not required to file a notice of trial) misses the mark and cannot, in and of itself, be the basis of a good cause showing. However, under the totality of the circumstances as set forth above, particularly in light of the fact that discovery remained outstanding despite the plaintiff's filing of a notice of trial and despite the defendant's efforts to obtain such discovery (including making a motion to vacate the notice of trial), the court finds that good cause exists to entertain the defendant's untimely motion for summary judgment (see Gonzalez v. 98 Mag Leasing Corp., 95 NY2d 124, 129 [2000]; Alvarez v. Eviles, 56 AD3d 500 [2d Dept 2008]; McArdle v. 123 Jackpot, Inc., 51 AD3d 743, 745 [2d Dept 2008]; Sclafani v. Washington Mut., 36 AD3d 682 [2d Dept 2007]).

Turning to the substantive merits of the instant motion, summary judgment is drastic relief - it denies one party the opportunity to go to trial. Thus, summary judgment should only be granted where there are no triable issues of fact (see Andre v. Pomeroy, 35 NY2d 361 [1974]). The focus for the court is on issue finding, not issue determining (see Hantz v. Fishman, 155 AD2d 415 [2d Dept 1989]). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidence to demonstrate the absence of any material issues of fact. Failure to make such a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; Winegrad v. New York University Medical Center, 64 NY2d 851 [1985]). Once the movant has demonstrated a prima facie showing of entitlement to judgment, the burden shifts to the party opposing the motion, to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Zuckerman v. City of New York, 49 NY2d 557 [1980]). [*4]

In support of its motion for summary judgment, the defendant made a prima facie showing of entitlement to judgment as a matter of law by producing evidence demonstrating that there was no validly existing contract between the parties pursuant to which the defendant agreed to provide a "running consideration" rebate (Rogowsky v. McGarry, 55A.D.3d 815 (2008)). In opposition, the plaintiff failed to raise an issue of fact. Accordingly, the defendant's motion for summary judgment is granted and the complaint is dismissed.

The foregoing constitutes the decision and order of the court.

SO ORDERED:

Hon. Gary F. Knobel

District Court Judge

Dated: June 11, 2009

cc:Burns, Russo, Jamigi & Reardon, LLP

Kanat Arbay