Stransky v. Tannenbaum

262 A.D.2d 301, 691 N.Y.S.2d 540, 1999 N.Y. App. Div. LEXIS 5925

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 1, 1999
• Status: Published

Opinion

—In an action to recover damages for legal malpractice, etc., (1) the defendants appeal from so much of an order of the Supreme Court, Nassau County (Franco, J.), entered April 6, 1998, as denied that branch of their cross motion which was for summary judgment dismissing the complaint, and (2) the plaintiffs cross-appeal from so much of the same order, as denied that branch of their motion which was for leave to serve a supplemental verified bill of particulars.

Ordered that the order is affirmed, without costs or disbursements.

The defendants’ cross motion was properly denied as untimely under the recent amendment to CPLR 3212 (a) which requires that a motion for summary judgment “shall be made no later than [120] days after the filing of the note of issue, except with leave of court on good cause shown” (L 1996, ch 492, eff Jan. 1, 1997). Where, as here, the note of issue predates the January 1, 1997, effective date of the amendment, the moving party is required to make the motion no later than 120 days after January 1, 1997 (see, Rich v Ciano, 254 AD2d 268; DiFusco v Wal-Mart Discount Cities, 255 AD2d 937; Phoenix Garden Rests. v Chu, 245 AD2d 164, 165). Here, the defendants’ cross motion for summary judgment was dated November 3, 1997, after the 120-day period had expired and the defendants failed to show good cause for their belated motion.

The plaintiffs’ application to supplement their bill of particulars was properly denied (see, Crimmins Contr. Co. v City of New York, 74 NY2d 166, 170; Dos v Scelsa & Villacara, 200 AD2d 705, 707; Stroock & Stroock & Lavan v Beltramini, 157 AD2d 590; JIHL Assocs. v Frank, 137 AD2d 655, 657; Scarangello v State of New York, 111 AD2d 798). Mangano, P. J., Friedmann, McGinity and Feuerstein, JJ., concur.