The following papers have been read on these motions: Robert Bogdanovic and Frank Lisa Nicosia’s Motion for Summary Judgment [Seq. 003] Notice of Motion for Summary Judgment and Supporting Papers [003] X Affirmation in Opposition to Cross-Motion and Further Support of Motion [003] X Gotham City Partners Group LLC et al.’s Cross-Motion to Amend and for Summary Judgment Notice of Cross-Motion for Summary Judgment and Supporting Papers [004] X ADDITIONAL CASES Gotham City Partners Group, LLC, Plaintiff v. Robert Bogdanovic and Frank Lisa Nicosia, Defendants; 602685/2020 DECISION AND ORDER ON MOTIONS Upon the foregoing papers, the motion by the Plaintiffs in Action No. 1/Defendants in Action No. 2, ROBERT BOGDANOVIC and FRANKA LISA NICOSIA, seeking an Order pursuant to CPLR 3212(a) granting leave to move for summary judgment after the expiration of one hundred twenty days after the filing of the note of issue and pursuant to CPLR 3212[b], dismissing Action No. 2, and granting them partial summary judgment in Action No. 1 for a declaratory judgment [Seq. 003]; and the cross-motion by the Defendants in Action No. 1, GOTHAM CITY PARTNERS GROUP, LLC ["GOTHAM"], PRECISE BUILDING TECHNOLOGIES CORP. d/b/a PBT REALTY, SCOTT ARENELLA and VINCENT MILLER/Plaintiff in Action No. 2, GOTHAM CITY PARTNERS GROUP, LLC, seeking an Order which [1] grants leave to amend the Complaint in Action No. 2 for the purposes of increasing the amount of damages sought; and [2] grants leave to amend the Answer in Action No. 1 to correct mistakenly omitted responses to the Complaint in that action; and [3] pursuant to CPLR 3212[a] grants leave to move for summary judgment: [i] in Action No. 1, pursuant to CPLR 3212[b], dismissing all causes of action in the Complaint against Scott Arenella and Vincent Miller in their individual capacities; and dismissing the 16th cause of action seeking attorney’s fees; and [ii], in Action No. 2, dismisses the counterclaim, are consolidated for the purposes of disposition and are determined as follows: The Court refers to the parties in this Decision and Order according to their designation in Action No. 1. Accordingly, Robert Bogdanovic and Frank Lisa Nicosia are collectively referred to herein as the “Plaintiffs”, and Gotham City Partners Group, LLC, Precise Building Technologies Corp. D/B/A PBT Realty, Scott Arenella And Vincent Miller, are collectively referred to herein as the “Defendants”. Both the Plaintiffs’ motion [Seq. 003] and the Defendants’ cross-motion [Seq. 004] for summary judgment fail to adhere to this part’s individual rules concerning motion submission, as they have failed to submit any Statement of Material Facts pursuant to 22 NYCRR 202.8-g. As directed in this part’s individual rules, “[t]he parties are hereby directed that, upon any motion for summary judgment, there shall be annexed to the notice of motion a separate, short, and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried. Section 202.8-g must be adhered to strictly. Lawyers who ignore or disobey this rule may be subject to sanctions including, but not limited to, denial of motion without prejudice to renew, and/or any other appropriate sanction.” The parties’ respective motions for summary judgment are subject to dismissal on that basis alone. Additionally, as recognized by the parties in requesting leave pursuant to CPLR 3212[a], their summary judgment motions are also untimely. According to the Plaintiffs’ motion papers, the Note of Issue was filed in Action No. 1 on August 1, 2022, and in Action No. 2 on November 3, 2021. That means that, even calculating the deadline to file summary judgment motions from the later of the two Note of Issue filing dates, i.e., August 1, 2022, and using the longer of the Court-ordered timeframes to move for summary judgment, i.e., ninety [90] days after the Note of Issue as directed in Justice Voutsinas’s preliminary conference order, the parties have moved for summary judgment well after the expiration of the court-ordered deadline to do so. It is well-settled that the Court shall not consider the merits of an untimely motion for summary judgment, “except with leave of court on good cause shown”. (CPLR 3212[a]; Brill v. City of New York, 2 NY3d 648 [2004]). To establish “good cause”, the movant must show “good cause for the delay in making the motion — a satisfactory explanation for the untimeliness — rather than simply permitting meritorious, nonprejudicial filings, however tardy”. (Brill, 2 NY3d at 652). “Absent a ‘satisfactory explanation for the untimeliness,’ constituting good cause for the delay, an untimely summary judgment motion must be denied without consideration of the merits”. (Dojce v. 1302 Realty Co., LLC, 199 AD3d 647, 649 [2d Dept 2021] [citing to Brill, 2 NY3d at 652]). In this case, neither of the parties have proffered a satisfactory explanation for the untimeliness of their summary judgment motions. The Plaintiffs’ counsel discusses entering the case as new counsel one year before they moved for summary judgment, then makes a generalized reference to counsel’s efforts to obtain documents from outgoing counsel, and then discusses trial scheduling logistics. Plaintiffs’ counsel argues that the Defendants suffer no prejudice by the Court granting leave to file an untimely summary judgment motion, but the Court of Appeals made clear that the test is “good cause” for the untimeliness, regardless of whether the opponent is prejudiced by the untimely submission. (See Brill, 2 NY3d at 652). The Defendants offer no explanation for their untimely cross-motion for summary judgment, except to argue that the Plaintiffs failed to establish “good cause” for their untimely summary judgment motion. As none of the moving parties demonstrated “good cause” as required pursuant to CPLR 3212[a], the portion of the parties’ respective motions seeking an Order pursuant to CPLR 3212[a] granting leave to move for summary judgment shall be DENIED, and the portions of the parties’ respective motions seeking an Order pursuant to CPLR 3212[b] granting summary judgment shall also be DENIED, and the Court has not considered the merits of the parties’ respective motions seeking summary judgment. (Dojce, 199 AD3d at 649). The Defendants’ cross-motion also seeks an Order pursuant to CPLR 3025(b) granting leave to amend their Complaint in Action No. 2 [in which Gotham is the Plaintiff] to increase the amount of damages sought. According to the Defendants, they discovered while preparing for trial that the amount spent on the Plaintiffs’ project far exceeded the $175,000.00 in damages they sought in Action No. 2. The Defendants have attached a copy of the proposed amended Complaint to their cross-motion, reflecting the amended damages as totaling $292,220.16. In opposition to the Defendants’ cross-motion, the Plaintiffs argue that the Defendants’ “eleventh-hour” claim to have spent $417,220.16 on the project is “plainly without merit and unduly prejudicial”. The Plaintiffs further contend that “it is inconceivable that they would not have known about the amount that Gotham spent on the project until now”. Plaintiffs assert that the facts do not support Gotham’s request to increase the damages they now seek and that if the Court grants the Defendants’ motion to amend, then the Plaintiffs should be afforded the opportunity to have limited discovery regarding the increased damages. The Defendants did not submit any papers responding to the Plaintiffs’ opposition to their cross-motion. CPLR 3025(b) provides that “[a] party may amend his or her pleading…at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just…”. “Although leave to amend pleadings ‘shall be freely given’…where, as here, a motion for leave to amend is made long after the case has been certified as ready for trial, ‘judicial discretion in allowing such amendments should be discrete, circumspect, prudent and cautious’”. (Fischer v. RWSP Realty, LLC, 53 AD3d 595, 596 [2d Dept 2008][citations omitted]). The Defendants’ cross-motion to amend was filed well after the case was already certified ready for trial. Additionally, the Defendants only state in a conclusory fashion that they learned of the additional damages “while preparing for trial” and they fail to establish that the proposed increase in the demand for damages “was based upon new facts that only recently came to [their] attention”. (Fisher, 53 AD3d at 596). Under such circumstances, and considering the Defendants’ failure to respond to the Plaintiffs’ contention that it is “highly suspect” the Defendants only recently discovered the amount they spent on the project, the Court finds that it would be inappropriate to permit the Defendants to amend their ad damnum clause in their Complaint. Accordingly, the portion of the Defendants’ cross-motion which seeks to increase their damages is DENIED. The Court notes that the Plaintiffs also argue that the Defendants’ “eleventh hour” crossmotion to amend the ad damnum clause in their Complaint provides “good cause” for the Plaintiffs’ delayed filing for summary judgment. However, such argument is illogical, as the Plaintiffs’ untimely summary judgment motion preceded the Defendants’ cross-motion to amend. The Court rejects the Plaintiffs’ efforts to characterize the Defendants’ subsequent cross-motion to amend Gotham’s Complaint [which the Court denied anyway] as a basis for the Court to consider the Plaintiffs’ untimely summary judgment motion. The Defendants also seek to amend their Answer in Action No. 1 to correct omitted responses to allegations contained in paragraph numbers 14, 34, 35, 41, 42, 44, 62, 63, 64, 65, and 96 in the Plaintiff’s Complaint. The Court has no basis to call into question the Defendants’ contention that such omitted responses were due to a mistake and that they only realized such mistake after the Plaintiffs asserted in their trial memorandum that the Defendants “admitted” the facts in those paragraphs. Additionally, the Plaintiffs fail to refute the Defendants’ assertion that throughout this extensive litigation the Defendants have consistently maintained the position that the Plaintiffs owed Gotham for work performed but that the parties disagreed about the dollar amount to be paid. While the Defendants’ filed their cross-motion to amend their Answer in Action No. 1 long after the case was certified ready for trial, the Court finds that the Plaintiffs would not be prejudiced by the proposed amendment and that the Defendants have sufficiently explained the delay in moving to amend their Answer. (Fischer v. RWSP Realty, LLC, 53 AD3d 595, 596 [2d Dept 2008][citations omitted]). Therefore, the portion of the Defendants’ cross-motion which seeks leave to amend its Answer in Action No. 1 is GRANTED, and the Proposed Amended Answer efiled as NYSCEF Doc. No. 78 shall be deemed as timely served and filed, nunc pro tunc. Accordingly, it is hereby: ORDERED, that the motion by the Plaintiffs in Action No. 1/Defendants in Action No. 2, Robert Bogdanovic and Frank Lisa Nicosia, for an Order pursuant to CPLR 3212[a] and CPLR 3212[b] [SEQ. 003], is DENIED, in its entirety; and it is further, ORDERED, that the portion of the cross-motion by the Defendants in Action No. 1, GOTHAM CITY PARTNERS GROUP, LLC, PRECISE BUILDING TECHNOLOGIES CORP. d/b/a PBT REALTY, SCOTT ARENELLA and VINCENT MILLER, and Plaintiff in Action No. 2, GOTHAM CITY PARTNERS GROUP, LLC, seeking an Order pursuant to CPLR 3212[a] and [b] [SEQ. 004] is DENIED; and it is further, ORDERED, that the portion of the cross-motion by the Defendants in Action No. 1, GOTHAM CITY PARTNERS GROUP, LLC, PRECISE BUILDING TECHNOLOGIES CORP. d/b/a PBT REALTY, SCOTT ARENELLA and VINCENT MILLER, and Plaintiff in Action No. 2, GOTHAM CITY PARTNERS GROUP, LLC, seeking an Order pursuant to CPLR 3025[b] to amend their pleadings, is GRANTED, to the extent of granting them leave to amend their Answer in Action No. 1 consistent with the Proposed Amended Answer e-filed as NYSCEF Doc. No. 78, and such proposed Amended Answer is deemed timely served and filed, nunc pro tunc, and the Defendants’ cross-motion [Seq. 004] is otherwise DENIED; and it is further, ORDERED, that all other requests for relief not specifically addressed herein shall be deemed DENIED. This constitutes the Decision and Order of the Court. Dated: November 13, 2023
