Lennard v Khan, 2010 NY Slip Op 00482 (2d Dept. 2010)
If an untimely MSJ by another party addresses identical issues of a timely moving party’s summary judgment motion, then the court must address the untimely motion for summary judgment.
“Where one party makes a timely summary judgment motion, the court may properly consider an untimely summary judgment motion, provided the late motion is based on “nearly identical” grounds as the timely motion (Perfito v Einhorn, 62 AD3d 846, 847 [internal quotation marks omitted]; see Step-Murphy, LLC v B & B Bros. Real Estate Corp., 60 AD3d 841, 844-845; Ianello v O’Connor, 58 AD3d 684; Grande v Peteroy, 39 AD3d 590, 591-592; Miranda v Devlin, 260 AD2d 451, 452). In effect, the “nearly identical” nature of the grounds supporting both motions serves as good cause sufficient to permit review on the merits of the untimely motion (Grande v Peteroy, 39 AD3d at 592). “Notably, the court, in the course of deciding the timely motion, is, in any event, empowered to search the record and award summary judgment to a nonmoving party” (see CPLR 3212[b]; Grande v Peteroy, 39 AD3d at 592).
Since the respondents’ motion was already properly before the court, it improvidently exercised its discretion in refusing to consider the separate motion of Prescod and Klass, made on identical grounds, on the ground that the separate motion was untimely made (see Joyner-Pack v Sykes, 54 AD3d 727; Grande v Peteroy, 39 AD3d at 591; Miranda v Devlin, 260 AD2d 451). Further, since the plaintiff did not challenge the movants’ contentions regarding serious injury, the separate motion should have been granted”
