| Bennett v St. John's Home |
| 2015 NY Slip Op 08613 [26 NY3d 1033] |
| November 23, 2015 |
| Court of Appeals |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, January 20, 2016 |
| Ainsworth M. Bennett, Individually and on Behalf of the Estate of Virginia R. Bennett, Deceased, Appellant, v St. John's Home et al., Respondents. |
Bennett v St. John's Home, 128 AD3d 1428, affirmed.
David E. Woodin, LLC, Catskill (David E. Woodin of counsel), for appellant.
Underberg & Kessler LLP, Rochester (David H. Fitch of counsel), for respondents.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, and certified question not answered as unnecessary. As the issue of the timeliness under CPLR 3212 (a){**26 NY3d at 1034} of defendants' summary judgment motion was not preserved in Supreme Court, the Court of Appeals lacks power to review either the Appellate Division's exercise of its discretion to reach the issue, or the issue itself (see Hecker v State of New York, 20 NY3d 1087 [2013]). On the remaining issue presented, the Appellate Division properly held that defendants were entitled to summary judgment.
Concur: Chief Judge Lippman and Judges Pigott, Rivera, Abdus-Salaam and Fahey; Judge Stein taking no part.