Recitation in accordance with CPLR 2219 (a) of the papers considered on defendant New York City Housing Authority's (hereinafter NYCHA), notice of motion filed on July 18, 2013, under motion sequence number ten, for an order granting summary judgment in its favor on the issue of liability and dismissing the complaint pursuant to CPLR 3212.

- Notice of Motion

- Attorney Affirmation [*2]

- Exhibits A through I

- Attorney Affirmation in Opposition

- Exhibit A

- Reply Attorney Affirmation

- Exhibits J through L

BACKGROUND

On August 16, 2006, the infant plaintiff by his mother and natural guardian Katalina Gutierrez, and Katalina Gutierrez individually commenced the instant action for damages for personal injuries and derivatively claims by filing a summons and verified complaint with the Kings County Clerk's office. The infant plaintiff allegedly sustained injuries when he fell due to a dangerous condition in a playground owned and operated by NYCHA. By a verified answer dated October 13, 2006, NYCHA joined issue. On April 30, 2013, a note of issue was filed.

LAW AND APPLICATION

Pursuant to the Uniform Civil Term Rules of the Supreme Court, Kings County, NYCHA was required to make its motion for summary judgment no later than 60 days after the filing of the note of issue, unless NYCHA obtained leave of the court on good cause shown (Kings County Supreme Court Uniform Civil Term Rules, Part C, Rule 6; CPLR 3212 [a] Goldin v New York and Presbyterian Hosp., 112 AD3d 578, 579 [2nd Dept 2013] Dallal v Kantrowitz, Goldhamer & Graifman, P.C., 48 AD3d 508 [2nd Dept 2008] citing Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004] Brill v City of New York, 2 NY3d 648, 652 [2004] Pierre v Feldman, 41 AD3d 454, 455 [2nd Dept 2007] Breiding v Giladi, 15 AD3d 435 [2nd Dept 2005]).

A motion is "made" when the notice of motion is served (Steisel v Golden Reef Diner, 67 AD3d 670, 670 [2nd Dept 2009] citing Rivera v Glen Oaks Village Owners, Inc., 29 AD3d 560, 561 [2nd Dept 2006]).

It is undisputed that the note of issue was filed on April 30, 2013. The rule for determining the time in which an act must be done is to exclude the first day and include the last day of the period (General Construction Law § 20). Therefore, measuring from the day the note of issue is filed, the sixtieth day fell on June 30, 2013. However, June 30, 2013, was a Sunday, making July 1, 2013 the latest date which NYCHA could make a timely motion for summary judgment (see Wilson ex rel. Wilson v Tompkins Ave. Grocery, Inc., 26 Misc 3d 1212(A)[(NYSup Jan 19, 2010] citing Foster v Thurber, 76 NYS2d 616 [NY Sup. 1947] and General Construction Law § 20).

NYCHA's affidavit of service of the instant motion states that it was served on July 17, 2013. NYCHA made the instant motion sixteen days late and did not seek leave to make a late summary judgment motion or demonstrate good cause for the delay (see CPLR 3212 [a] Brill v City of New York, 2 NY3d 648 [2004]).

The motion is denied as untimely.

The foregoing constitutes the decision and order of this Court.

Enter: [*3]

J.S.C.