Rivera v City of New York, 2010 NY Slip Op 03773 (App. Div., 1st, 2010)
Defendant's cross motion for summary judgment, which was made in
response to a motion by plaintiff characterized by the motion court as
one to restore the action to the calendar, should have been denied as
untimely, as defendant failed to show good cause for making the cross
motion more than 120 days after the filing of the note of issue (CPLR
3212[a]; Brill v City of New York, 2 NY3d 648, 652
[2004]). At least where, as here, the 120-day time limit had expired
before the case was struck from the calendar, we reject defendant's
argument that the 120-day limit does not apply to cases that have been
struck from the calendar. We note Brill's express prohibition
against consideration of unexcused, untimely motions no matter how
meritorious or nonprejudicial (id. at 653, especially n 4; see Perini Corp. v City of New York, 16 AD3d 37,
39-40 [2005]).
The bold is mine.
bruteforcelawyer.com 