Malitizis v. First Unum Life Insurance

275 A.D.2d 621, 713 N.Y.S.2d 471, 2000 N.Y. App. Div. LEXIS 9182

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 14, 2000
• Status: Published

Opinion

—Order, Supreme Court, New York County (Harold Tompkins, J.), entered October 21, 1999, which denied plaintiffs application for leave to file a motion for summary judgment, unanimously reversed, on the law, the facts, and in the exercise of discretion, without costs, the application granted and the matter remanded for further proceedings.

Under the circumstances presented, Supreme Court abused its discretion when it denied plaintiffs application seeking leave to file a motion for summary judgment more than 120 days after the filing of the note of issue (see, CPLR 3212 [a]). We note in this regard that the proposed motion was premised upon the Court of Appeals decision in New England Mut. Life Ins. Co. v Doe (93 NY2d 122), which was decided after the 120-day period had expired. Moreover, defendant did not oppose plaintiffs application and does not do so on appeal. Concur — Nardelli, J. P., Ellerin, Lerner, Buckley and Friedman, JJ.