Crawford v. Liz Claiborne, Inc.

Plaintiffs contention that defendants’ motion for summary judgment was untimely has been rejected by the Court of Appeals, which found that the motion was timely (11 NY3d 810 [2008]). On the merits of that motion, defendants met their burden of demonstrating prima facie entitlement to summary judgment, and were properly granted summary judgment given that plaintiffs only argument in opposition to the motion was that it was untimely. We reject plaintiffs argument that the court erred in not giving him an opportunity to address *271defendants’ motion on the merits in the event the court rejected his argument that the motion was untimely. Plaintiff initially challenged the timeliness of defendants’ motion by filing an order to show cause to strike the motion that, several days later, was orally argued and denied in a written order that directed plaintiff to raise the timeliness issue in his response to defendants’ motion. The clear import was that any substantive response had to be raised along with the timeliness issue. If plaintiff was uncertain as to what was expected, he should have sought clarification. Concur—Tom, J.P., Williams, Nardelli and McGuire, JJ.