Tavkar v. Cab

In an action to recover damages for personal injuries, the defendant IlonaBoris Cab appeals from an order of the Supreme Court, Queens County (Berke, J.), dated January 8, 2001, which denied as untimely its motion for summary judgment dismissing the complaint on the ground that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102 (d). Ordered that the order is affirmed, without costs or disbursements.. A motion for summary judgment must be made within 120 days of the filing of a note of issue “except with leave of court on good cause shown” (CPLR 3212 [a]; see, Gonzalez v 98 Mag [222] Leasing Corp., 95 NY2d 124, 128-129; Olzaski v Locust Val. Cent. School Dist., 256 AD2d 320, 321). The appellant’s summary judgment motion, filed more than 120 days after the filing of the note of issue, was untimely. Moreover, it was made without leave of the court and without good cause shown for the delay (see, Torres v Westchester Dental Servs., 287 AD2d 710; Clifford v Harrow Stores, 274 AD2d 370, 371; Olzaski v Locust Val. Cent. School Dist., supra). Accordingly, the Supreme Court providently exercised its discretion in denying the motion as untimely. Ritter, J. P., Goldstein, Friedmann, Feuerstein and Crane, JJ., concur.