Miller v. Ball ( 2018 )

Miller v Ball (2018 NY Slip Op 06897)

Miller v Ball

2018 NY Slip Op 06897

Decided on October 17, 2018

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 17, 2018 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
RUTH C. BALKIN
ROBERT J. MILLER
FRANCESCA E. CONNOLLY, JJ.

2017-05645
(Index No. 22339/12)

[*1]Paige Miller, respondent,

v

James Ball, appellant.

Ann Ball P.C., Commack, NY, for appellant.

Mintzer, Sarowitz, Zeris, Ledva & Meyers LLP, New York, NY (Kevin L. Kelly of counsel), for respondent.

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Diccia T. Pineda-Kirwan, J.), entered April 28, 2017. The order denied the defendant's motion, in effect, for summary judgment on his counterclaims as untimely.

ORDERED that the order is affirmed, with costs.

We agree with the Supreme Court's determination that the defendant's motion, in effect, for summary judgment on his counterclaims was untimely, and that the defendant failed to demonstrate good cause for the delay in making his motion (see CPLR 3212[a]; Brill v City of New York, 2 NY3d 648, 650; Perini Corp. v City of New York [Department of Envtl. Protection], 16 AD3d 37, 40).

The defendant's remaining contention is not properly before this Court.

We decline the plaintiff's request to impose a sanction upon the defendant for pursuing an allegedly frivolous appeal (see 22 NYCRR 130-1.1[c]).

DILLON, J.P., BALKIN, MILLER and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court