Gomez v. Kukaj

In an action to recover damages for personal injuries, the defendant appeals from (1) an order of the Supreme Court, Queens County (Posner, J.), dated February 28, 2001, which denied as untimely his motion for summary judgment dismissing the complaint, and (2) so much of an order of the same court, entered July 27, 2001, as, in effect, upon granting reargument, adhered to the original determination. [532] Ordered that the appeal from the order dated February 28, 2001, is dismissed, as that order was superseded by the order entered July 27, 2001, made upon reargument; and it is further, Ordered that the order entered July 27, 2001, is affirmed insofar as appealed from; and it is further, Ordered that the plaintiff is awarded one bill of costs. Although more than 120 days elapsed since the filing of the note of issue in this action, the defendant moved for summary judgment dismissing the complaint without seeking leave of the court or establishing good cause (see, CPLR 3212 [a]; Welch v City of Glen Cove, 273 AD2d 302; Neves v Port Auth., 265 AD2d 393; DiFusco v Wal-Mart Discount Cities, 255 AD2d 937). Accordingly, the Supreme Court providently exercised its discretion in denying the motion. Altman, J.P., Smith, Krausman, McGinity and Cozier, JJ., concur.