TEPPER v. CITY OF NEW YORK

Under the circumstances of this case, the court should have exercised its discretion to excuse the brief delay in moving for summary judgment ( see CPLR 3212 [a]; Quinlan v. Kaufman, 258 AD2d 453).

Defendant-appellant demonstrated that on the merits it was entitled to judgment as a matter of law by establishing that it did not remove, repair or restore the concrete blocks in the crosswalk on which plaintiff tripped and fell. In opposition to the motion, plaintiffs and defendant-respondent City demonstrated no more than that defendant-appellant was present at the site during the project, thus failing to raise an issue of fact as to whether defendant-appellant worked on the concrete blocks on which plaintiff fell.