Leonardi v Cruz, 2010 NY Slip Op 04257 (1sr Dept. 2010)
“Furthermore, although “[a] cross motion for summary judgment made after the expiration of the statutory 120-day period may be considered by the court, even in the absence of good cause, where a timely motion for summary judgment was made seeking relief nearly identical to that sought by the cross motion” (Filannino v Triborough Bridge & Tunnel Auth., 34 AD3d 280, 281 [2006], appeal dismissed 9 NY3d 862 [2007] [internal quotation marks and citations omitted]), the issues of liability and serious injury are not so intertwined or nearly identical (see Covert, 53 AD3d at 1148).”
If a defendant moves for summary judgment on the basis that its defense was proved prima facie and Plaintiff untimely cross-moves on the basis that it established its prima face case, then it appears that Plaintiff could be out of the box. Similarly, if Plaintiff moves for summary judgment on the basis that it established its prima facie case and Defendant untimely cross-moves on the basis that its defense was proved prima facie, then Defendant could also be out of the box.
Or perhaps these issues are “so intertwined or nearly identical.” I do not have the answer on this one.
