Opinion
5255 Index 309282/12
12-21-2017
Antonia FOMINA, Plaintiff–Respondent, v. DUB REALTY, LLC, et al., Defendants–Appellants, Century Vertical Systems, Inc., Defendant–Respondent.
Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for appellants. Robert G. Spevack, New York, for Antonina Fomina, respondent. Gottlieb Siegel & Schwartz, LLP, New York (Michele Rosenblatt of counsel), for Century Vertical Systems, Inc., respondent.
Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for appellants.
Robert G. Spevack, New York, for Antonina Fomina, respondent.
Gottlieb Siegel & Schwartz, LLP, New York (Michele Rosenblatt of counsel), for Century Vertical Systems, Inc., respondent.
Tom, J.P., Friedman, Renwick, Kahn, Kern JJ.
Order, Supreme Court, Bronx County (Donna M. Mills, J.), entered May 5, 2016, which, in this action for personal injuries allegedly sustained when plaintiff tripped and fell while exiting an elevator in the apartment building in which she lived, denied as untimely the motion of defendants DUB Realty LLC and JRC Management LLC for summary judgment dismissing the complaint as against them, unanimously reversed, on the law, without costs, the order vacated, and the matter remanded for further proceedings.
In assessing the timeliness of a motion for summary judgment, the proper measure is whether the motion is served within 120 days of the filing of the note of issue, not whether the motion is filed within that time frame (see Derouen v. Savoy Park Owner, L.L.C., 109 A.D.3d 706, 971 N.Y.S.2d 2 [1st Dept. 2013] ; CPLR 2211 ). Here, the motion was timely served, and therefore the matter is remanded to the motion court for a consideration of the merits of the summary judgment motion in the first instance (see e.g. Higgins v. Consolidated Edison Co. of N.Y., Inc., 93 A.D.3d 443, 939 N.Y.S.2d 431 [1st Dept. 2012] ; Commission of the State Ins. Fund v. Weissman, 90 A.D.3d 417, 934 N.Y.S.2d 27 [1st Dept. 2011] )).