The following papers numbered 1 to 5 were fully submitted on the 4th day of November, 2015.

CONDOMINIUM ASSOCIATION, with Supporting Papers, and Exhibits

(dated July 10, 2014) 1

GAETA SANITATION and GAETA CARTING, INC., with Supporting

Papers, and Exhibits

(dated July 14, 2015) 2

SERVICES, INC., GAETA SANITATION and GAETA CARTING, INC., with

Exhibits

(dated September 11, 2015) 3

GRASMERE 1 CONDOMINIUM ASSOCIATION, with Exhibits

(dated September 11, 2015) 4

ASSOCIATION, with Exhibits

(dated September 15, 2015) 5

Upon the foregoing papers, the motions for summary judgment in Action No. 2 of defendant THE HILLS at GRASMERE I CONDOMINIUM ASSOCIATION (Motion No. 2633-008), and defendants ABSOLUTE SERVICES INC., GAETA SANITATION INC. and GAETA CARTING, INC. (Motion No. 2611-007), are denied.

Plaintiff initially commenced Action No. 1 against defendants THE CITY OF NEW YORK, THE CITY OF NEW YORK DEPARTMENT OF SANITATION ^[FN1] and THE HILLS at GRASMERE 1 CONDOMINIUM ASSOCIATION (hereinafter "THE HILLS") in September, 2011 to recover damages for injuries she sustained when she slipped and fell on ice on the roadway adjacent to 252 Grasmere Drive on Staten Island. Subsequently, plaintiff commenced a like action (Action No. 2) against defendants ABSOLUTE SERVICES, INC. GAETA SANITATION, INC., and GAETA CARTING, INC., on about October 8, 2013. Both actions were subsequently consolidated for purposes of discovery, and joined for trial.At the time of plaintiff's fall, she was a resident of THE HILLS condominium complex and President of the Condominium Board.

By way of background, it is undisputed that a significant snow storm occurred on December 26, 2010, which resulted in an accumulation of more than 30 inches of snow. Plaintiff [*2]was injured when she apparently slipped and fell on ice that was present on the roadway in front of her residence at 252 Grasmere Drive two days later. At this point in time, defendant ABSOLUTE SERVICES, INC. (hereinafter "ABSOLUTE") had nearly completed its snow removal operations.

According to the complaint, THE HILLS was responsible for the timely and adequate removal of snow and/or ice from the roadway in front of 252 Grasmere Drive. While there is no proof that THE HILLS had any formal snow removal contract with any outside entity, it was nevertheless required by the terms of the condominium's "Offering Plan" to arrange for snow removal from its internal roadways.

Plaintiff maintains that it was a person named "Trevor" who usually came around to remove snow following a significant snow fall, but this time he failed to show up. Accordingly, plaintiff, acting in her official capacity as Board President, contacted defendant ABSOLUTE for emergency snow removal from the roadways within the condominium complex. In support, a copy of a paid bill from ABSOLUTE in the amount of $4,000.00 representing the cost of plowing and snow removal relative to the above storm was attached as an exhibit to THE HILLS' motion papers. Insofar as it appears, ABSOLUTE had been working through the night to remove the snow, and when plaintiff came outside at about 5:00 in the morning, it is alleged that she was asked by one of ABSOLUTE's workers to move certain parked cars that were impeding their efforts to complete their work. She appears to have agreed, since it was after she moved her own two cars that she slipped and fell after exiting the second vehicle. Plaintiff alleges inter alia, that it was ABSOLUTE's failure to apply salt and/or sand to the roadway that was the cause of her injury.

In separate motions, defendants ABSOLUTE, GAETA SANITATION INC. and GAETA CARTING INC. (Motion No. 2611-007), and defendants THE HILLS (Motion No. 2633-008) have moved for summary judgment dismissing the complaint as against them. According to these defendants, each of their motions was timely, having been served, respectively on July 10 and July 14, 2015, i.e., within 60 days of the filing of plaintiff's Note of Issue, which they claim occurred on May 15, 2015.

In support of its motion, THE HILLS alleges, in pertinent part, that it neither created nor had actual or constructive notice of any dangerous condition which allegedly caused plaintiff to fall. According to this defendant, ABSOLUTE had not even finished its snow removal operations at the time of plaintiff's fall. Accordingly, to the extent that THE HILLS was obligated to have the snow removed, it is claimed that it had insufficient time to remedy the icy condition complained of. To the contrary, THE HILLS cites to plaintiff's EBT testimony, during which she stated that she failed to notice the purported icy condition at any time before her fall. In addition, the movant cites the absence of any evidence that it caused or created the condition which allegedly precipitated plaintiff's fall.

In the alternative, THE HILLS argues that plaintiff, as a Board Member and President of the Condominium Association, violated her own fiduciary duty by failing to discharge her responsibility to provide for the expeditious removal of snow and ice, and that said failure could not be used to impose liability on this defendant. Accordingly, it is argued that plaintiff cannot benefit from her own breach of a fiduciary duty to arrange for the timely and proper removal of snow and ice from the condominium complex.

In their joint motion for summary judgment (Motion No. 2611-007), defendant GAETA CARTING argues that it did not exist at the time of plaintiff's accident, since it was only incorporated on August 14, 2013, i.e., three days after plaintiff's fall. Insofar as defendant GAETA SANITATION is concerned, it argues similarly that it was not in the business of performing snow removal operations at the time of the alleged incident. Accordingly, neither can be held liable to plaintiff, and the complaint as against each should be severed and dismissed.

As for their codefendant, ABSOLUTE, it is argued, inter alia, that there is no proof that it negligently removed snow from the location where plaintiff slipped and fell.^[FN2] Neither did it create or exacerbate a pre-existing icy condition at the subject location. According to ABSOLUTE, it was hired on an emergency basis, and there had been no discussion between it and THE HILLS regarding the application of salt, sand or ice melt in conjunction with its snow removal services. Thus, it cannot be said that ABSOLUTE failed to perform in accordance with their agreement. In addition, to the extent relevant, ABSOLUTE argues that it had received no complaints about its performance, which was incomplete at the time of plaintiff's fall. Finally, ABSOLUTE argues that the ultimate responsibility to safely maintain the subject premises rested with the owner, and that it had done nothing to displace the owner's liability. Any such assumption of that liability in this case would have required an express agreement and none existed (cf. Espinal v. Melville Snow Contrs., 98 NY2d 136, 139-143).

The motions for summary judgment are denied.

It is undisputed that a party moving for summary judgment under the Local Rules of this Court must bring its motion no later than 60 days from the filing of the Note of Issue (see CPLR 3212[a]; Richmond County Uniform Civil Term Rules, "Motion Requirements" §1). Here, it is undisputed that THE HILLS moved on July 10, 2015, and that the remaining defendants moved on July 14, 2015. However, these dates were, respectively, 65 and 69 days after the filing of the Note of Issue, which occurred on May 6, 2015 when it was received by the Clerk of the Court (see Castro v. Homsun Corp., 34 AD3d 616, 617). This is the date clearly stamped numerous times on the face of the Note of Issue, and any assertion of a perceived but illusory discrepancy between this date and the May 15, 2015 date which also appears on the Note of Issue is wholly devoid of merit. Here, the latter date reflects the date on which the Note of Issue was formally entered by the Court Clerk, rather than the date on which it was filed.Accordingly, both motions are untimely.

The courts in this State are precluded from entertaining an untimely motion for summary judgment without regard to the merit of the application and/or the lack of prejudice to the non-moving party (see CPLR 3212[a]; Brill v. City of New York, 2 NY3d 648, 652; Thompson v. New York City Bd.of Educ., 10 AD3d 650, 657). Neither may this time be extended absent a showing of good cause for the delay (id.). In this case, the motions were clearly untimely, and the movants neither requested an extension of time nor offered any satisfactory explanation for their dilatory conduct. Thus, the Court is without discretion to entertain these summary judgment motions.

Accordingly, it is

ORDERED that the motions for summary judgment in Action No. 2 by defendants THE HILLS at GRASMERE I CONDOMINIUM ASSOCIATION (No. 2633-008), and defendants ABSOLUTE SERVICES INC, GAETA SANITATION INC. and GAETA CARTING, INC. (No. 2611-007), are denied as untimely.

E N T E R:

HON. THOMAS P. ALLIOTA