JERRY v. NEW YORK CITY HOUSING AUTHORITY (2001)

In an action, inter alia, to recover damages for personal injuries, the defendant New York City Housing Authority appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Taylor, J.), dated April 7, 2000, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it as untimely.

ORDERED that the order is reversed insofar as appealed from, as a matter of discretion, with costs, and the matter is remitted to the Supreme Court, Queens County, to determine the appellant's motion for summary judgment dismissing the complaint insofar as asserted against it on the merits.

Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying the appellant's motion for summary judgment dismissing the complaint insofar as asserted against it as untimely (see, CPLR 3212[a];  Gonzalez v. 98 Mag Leasing Corp., 95 N.Y.2d 124, 711 N.Y.S.2d 131, 733 N.E.2d 203;  Medina v. Barbaro, 279 A.D.2d 615, 720 N.Y.S.2d 165;  Zwecker v. Clinch, 279 A.D.2d 572, 720 N.Y.S.2d 150;  Goodman v. Gudi, 264 A.D.2d 758, 695 N.Y.S.2d 576).   The motion was made only three days after the 120 day period had expired (see, CPLR 3212[a] ), as well as before a pretrial conference had been scheduled.   Furthermore, the plaintiffs failed to demonstrate any prejudice from the delay.

RITTER, J.P., KRAUSMAN, H. MILLER and SMITH, JJ., concur.