ALEXANDER v. CITY OF NEW YORK (2000)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (Mastro, J.), dated November 22, 1999, as granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 Where a 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, Bono v. Barzallo, 260 A.D.2d 592, 688 N.Y.S.2d 655;  Olzaski v. Locust Val. Cent. School Dist., 256 A.D.2d 320, 681 N.Y.S.2d 345).   Here, the note of issue was filed on May 9, 1996, and the defendant's motion for summary judgment was not made until August 2, 1999.   However, since the 1996 note of issue was, in essence, nullified when the plaintiffs' action was removed from the trial calendar due to the unavailability of their expert in July 1999, the motion for summary judgment was timely pursuant to CPLR 3212(a) (see, Bono v. Barzallo, supra;  Attilio v. Gladstone, 174 Misc.2d 759, 667 N.Y.S.2d 233).   Accordingly, the Supreme Court did not err in deciding the defendant's motion on the merits.

 Furthermore, the plaintiffs failed to raise a triable issue of fact to defeat the defendant's prima facie showing of entitlement to judgment as a matter of law, since there was no evidence presented that the defendant either created the alleged ice patches in the parking lot where the injured plaintiff fell, or that it had actual or constructive notice of the existence of the condition (see, Simmons v. Metropolitan Life Ins. Co., 84 N.Y.2d 972, 622 N.Y.S.2d 496, 646 N.E.2d 798;  Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Davis v. City of New York, 255 A.D.2d 356, 679 N.Y.S.2d 423).   Thus, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

MEMORANDUM BY THE COURT.