Judge Ruben Franco
After defendants’ default, Supreme Court had granted summary judgment on the issue of liability in favor of plaintiff Tillies before the case was removed to Civil Court. Merkison, injured in the same accident and vehicle as Tillies, now moved for summary judgment, arguing the prior decision had res judicata effect. The court noted “it is beyond cavil that res judicata” barred a later action when the previous one was concluded on the merits, but not when a judicial determination was made on default. Further, the court stated the same time limitations for summary judgment motions under CPLR 3212(a) regarding a note of issue—filed in Supreme Court—also applied to the Civil Court equivalent—a notice of trial. It noted the requirement for filing a motion for summary judgment was to be made no later than 120 days after the filing of a note of issue, except with leave of court upon a showing of good cause. The court found the note of issue was filed July 2010, but the motion for summary judgment was submitted two years later. It rule as the motion was made after the statutory time elapsed, and Merkison presented no excuse for the delay, the motion was untimely and thus denied.