By Notice of Motion filed on June 12, 2009, defendants Charles W. D. Stephens (Stephens) and Arma Scrap Metal, Inc. (Arma) move, pursuant to CPLR § 3212, for an order granting summary judgment dismissing the complaint. By notice of cross-motion filed on October 20, 2009, plaintiffs' oppose the defendants' motion and cross-move pursuant to CPLR § 3126 for an order striking the defendants' answer as a sanction based on spoliation of evidence.

By order of this court, dated December 11, 2009, plaintiff's cross-motion for an

order striking the defendants' answer was denied. The court found that plaintiffs did not demonstrate an inability to prove their claim by the defendant's wilful or negligent destruction of evidence (see Denoyelles v Gallagher, 40 AD3d 1027, [2nd Dept., 2007]). Although not specifically stated in the order of December 11, 2009, the denial of the cross-motion was without prejudice. Inasmuch as plaintiff only sought to strike the defendants' answer, the court did not consider lesser sanctions such as preclusion or an [*2]adverse inference charge as alternatives. Plaintiffs have leave to demonstrate by a motion that a lesser sanction may be appropriate.

Plaintiffs action is for damages allegedly sustained as a result of a motor vehicle accident that occurred on the Long Island Expressway on May 30, 2006. Plaintiff alleges that pieces of rubber from a tire came off a truck and struck the vehicle occupied by the plaintiffs. Plaintiff Yeun Hee Hong was driving a 2006 Toyota Camry with her two daughters, Sera and Semi, as passengers. Stephens was driving a 1990 Mack truck owned by Arma. There is no dispute that pieces of a tire came off Arma's truck and struck the Camry vehicle.

Defendants' motion papers consists of an affirmation of counsel and fifteen annexed exhibits labeled A through O. Exhibit A is the summons and verified complaint. Exhibit B is defendants' answer. Exhibit C is plaintiffs' verified bill of particulars. Exhibit D is defendants' consent to change attorney dated November 5, 2007. Exhibit E is a stipulation of the parties to discontinue with prejudice defendants' counterclaim against plaintiff Yeun Hee Hong. Exhibit F is an illegible order of Justice Ellen Spodek dated January 5, 2010. Defendants contend that the order permitted them one hundred and twenty (120) days from the filing of the note of issue to make a summary judgment motion. Exhibit G is the deposition of plaintiff Yeung Hee Hong conducted on February 4, 2008. Exhibit H is the deposition of Sera Eum, an infant, conducted on October 8, 2007. Exhibit I is the deposition of Semi Eum conducted on October 8, 2007. Exhibit J is the deposition of Charles W. D. Stephens, conducted on January 26, 2009. Exhibit K is the deposition of Dennis M. Goldberg, the president of Arma, conducted on January 26, 2009. Exhibit L is the New York State Department of Motor vehicle police accident report (MV-104) of the accident in question. Exhibit M is an affidavit of Ira Berger, the president of Eastern Tire and Battery Works. Exhibit N is an affidavit of Andres Fernandez, the principal of AF and JR Truck Repairs, Inc. Exhibit O is an invoice from AF and JR Truck Repairs, Inc dated January 3, 2006.

Plaintiffs cross moved for an order pursuant to CPLR § 3126 striking the defendants' answer as a sanction based on spoliation of evidence. Plaintiffs contended that their cross-motion included opposition to the instant motion. By order of this Court, dated December 11, 2009, plaintiff's cross-motion for an order striking the defendants' [*3]answer was denied.

On February 27, 2009, a note of issue was filed. The instant motion for summary judgment was served by regular mail to the office of plaintiffs' counsel on June 10, 2009, and filed on June 12, 2009. Pursuant to Rule 13 of the Uniform Civil Term Rules of the Supreme Court, Kings County, the defendants were required to make their motion for summary judgment no more than 60 days after the note of issue was filed, except with leave of the court on good cause shown (Dallal v. Kantrowitz, Goldhamer & Graifman, P.C., 48 AD3d 508 [2nd Dept., 2008]). It is uncontroverted that the defendants' motion was made more than 60 days after the note of issue was filed. The defendants, however, neither alleged nor showed the existence of good cause for the delay in making the instant summary judgment motion. The merits of the motion should not be considered unless good cause was shown for the delay (see First Union Auto Finance Inc. v. Donat, 16 AD3d 372 [2nd Dept., 2005]).

The affirmation of defendants' counsel submitted in support of the instant motion refers to annexed exhibit F, an illegible court order dated January 5, 2009. Counsel contends that the court order extends the defendants' time to make a summary judgment motion to one hundred and twenty (120) days from the filing of the note of issue. The court searched the Kings County Clerk's office records to retrieve a legible copy of the order. The legible copy demonstrates that the order was a stipulation prepared after a Central Compliance Conference. The parties stipulated to restore the case to active status; to complete the defendants deposition by January 26, 2009 and to file a note of issue by February 27, 2009. The parties further stipulated that the defendants would have (120) days from the filing of the note of issue to make a summary judgment motion, for good cause shown. The parties presented the stipulation to the court to have it so-ordered by the court. The court signed the stipulation without hearing oral argument on the agreement but conditioned the extension of defendants' time to make a summary judgment motion to a showing of good cause.

No showing of good cause was made in the instant motion. To the extent that the defendants may believe that a showing of good cause is obviated by the stipulation of the parties, they should review the persuasive reasoning of Justice Arthur M. Schack in Balcerzak v. DNA Contracting, LLC, 9 Misc 3d 524 [NY Sup 2005]. In that action, the parties stipulated to allow an extended time period for the making of summary judgment motions, without any application to the Court for good cause. "In the absence of such a showing, a late summary judgment motion may not be considered, even if it appears to have merit and the delay has not prejudiced the adversary ..." Justice Schack found such an agreement violates public policy. This court shares the view that absent a showing of good cause, the parties cannot extend the time to make a summary judgment motion by stipulation. Defendants' motion for summary judgment is denied without prejudice as [*4]untimely. Defendants have twenty days from notice of entry of the instant decision and order to file a motion for leave to file a late summary judgment motion.

The foregoing constitutes the decision, order and judgment of the court.

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