DEINHARDT v. VOUGHT (1999)

In a negligence action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (LeVine, J.), dated December 8, 1997, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

On July 27, 1988, the automobile owned and operated by the defendant allegedly struck the rear end of a stopped United States Postal Service tractor-trailer truck operated by the plaintiff, causing the plaintiff to sustain personal injuries.   In September 1988, the plaintiff commenced this action.   Issue was joined in December 1988.   Following the conclusion of discovery, on or about July 12, 1996, the plaintiff filed a note of issue.

In July 1997, the defendant moved for summary judgment dismissing the complaint, asserting that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).   In opposition, the plaintiff argued, inter alia, that the defendant's summary judgment motion should not be entertained as it was not filed within 120 days after the filing of the note of issue, as required by the recent amendment to CPLR 3212(a) (L.1996, ch. 492, § 1).

By order dated December 8, 1997, the court granted the motion, holding, inter alia, that the defendant had moved on a timely basis because the amendment to CPLR 3212(a), effective January 1, 1997, was not be applied retroactively.   We now reverse.

 CPLR 3212(a) provides, in relevant part, that any party may move for summary judgment after issue has been joined, provided, however, that the motion shall be made no later than 120 days after the filing of the note of issue, except with leave of court on good cause shown.   It is now well settled that where, as here, the note of issue was filed before the effective date of the amendment and the summary judgment motion was made after the effective date of the amendment, the 120-day period runs from the effective date of the amendment (see, Anzalone v. Varis, 254 A.D.2d 381, 678 N.Y.S.2d 736;  Shmulevich v. Gabbidon, 253 A.D.2d 756, 677 N.Y.S.2d 495;  Krug v Jones, 252 A.D.2d 572, 675 N.Y.S.2d 302;  Phoenix Garden Rest. v. Chu, 245 A.D.2d 164, 667 N.Y.S.2d 20;  Auger v. State of New York, 236 A.D.2d 177, 666 N.Y.S.2d 760).   The defendant's summary judgment motion was not made within 120 days after January 1, 1997, and the defendant has failed to show good cause for his belated motion.   Accordingly, the motion must be denied as untimely.

MEMORANDUM BY THE COURT.