Farrington v. Heidkamp

26 A.D.3d 459, 809 N.Y.S.2d 458

Opinion

In an action, inter alia, to recover damages for personal injuries, the defendant Thomas J. Brennan appeals from an order of the Supreme Court, Westchester County (Nastasi, J.), entered April 6, 2005, which denied, as untimely, his motion for summary judgment dismissing the complaint insofar as asserted against him on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Westchester County, for a determination of the motion on the merits.

Contrary to the conclusion of the Supreme Court, the motion for summary judgment was timely served. The note of issue filed on July 19, 2003, was vacated when the case was removed from the trial calendar on September 21, 2004 (see Alexander v City of New York, 277 AD2d 334 [2000]; Bono v Barzallo, 260 AD2d 592 [1999]). Adams, J.P., Ritter, Goldstein, Skelos and Dillon, JJ., concur.