Opinion
April 26, 1999
Appeal from the Supreme Court, Queens County (Milano, J.).
Ordered that the order is affirmed, with costs.
It is now established that, in a case where the note of issue was filed before January 1, 1997, that is, before the effective date of chapter 492 of the Laws of 1996 which amended CPLR 3212 (a), a motion for summary judgment should, in general, be made within 120 days after January 1, 1997 ( see, e.g., Olzaski v. Locust Val. Cent. School Dist., 256 A.D.2d 320; Wade v. Byung Yang Kim, 250 A.D.2d 323; Krug v. Jones, 252 A.D.2d 572; Phoenix Garden Rest. v. Chu, 245 A.D.2d 164; Auger v. State of New York, 236 A.D.2d 177). In the present case, the note of issue was filed in 1995, yet the defendant's motion was not made until August 25, 1997. Nonetheless, we find that the motion was not untimely pursuant to CPLR 3212 (a), in light of the fact that the 1995 note of issue was, in essence, nullified when the plaintiff's action was removed from the trial calendar on April 29, 1997 ( see, Attilio v. Gladstone, 174 Misc.2d 759). Therefore, the Supreme Court did not err in entertaining the defendants' motion on the merits, and properly granted the motion.
Bracken, J. P., Ritter, Santucci and Altman, JJ., concur.