Opinion
September 14, 2000.
Order, Supreme Court, New York County (Harold Tompkins, J.), entered October 21, 1999, which denied plaintiff's 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.
Andrew J. Wigler, for plaintiff-appellant.
Evan L. Gordon, for defendant-respondent.
Before: Nardelli, J.P., Ellerin, Lerner, Buckley, Friedman, JJ.
Under the circumstances presented, Supreme Court abused its discretion when it denied plaintiff's 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 Mutual Life Ins. Co. v. Doe ( 93 N.Y.2d 122), which was decided after the 120-day period had expired. Moreover, defendant did not oppose plaintiff's application and does not do so on appeal.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.