GIANNATTASIO v. HAN SUK KANG (2006)

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Schneier, J.), entered July 25, 2005, which, upon the granting of the respective oral motions of the defendants New York City Off-Track Betting Corp. and Han Suk Kang for summary judgment, is in favor of them and against him.

ORDERED that the judgment is reversed, on the law, the oral motions are denied, and the matter is remitted to the Supreme Court, Kings County, for trial, with costs to abide the event.

The Supreme Court improperly entertained the defendants' oral motions for summary judgment made on July 5, 2005, the day the trial in this matter was to begin.   The notes of issue in this matter were filed more than 120 days prior thereto, on September 22, 2003.   Since the record is devoid of any showing as to good cause for entertaining the motions on July 5, 2005, they should have been denied (see CPLR 3212[a];  Brill v. City of New York, 2 N.Y.3d 648, 781 N.Y.S.2d 261, 814 N.E.2d 431;  Rivera v. Toruno, 19 A.D.3d 473, 796 N.Y.S.2d 708;  Thompson v. New York City Bd. of Educ., 10 A.D.3d 650, 781 N.Y.S.2d 617).

The parties' remaining contentions, including those raised by the plaintiff and New York City Off-Track Betting Corp. in connection with an order of the same court dated November 16, 2004 (see Giannattasio v. Han Suk Kang, 30 A.D.3d 374, 816 N.Y.S.2d 685, 2006 WL 1545104, [decided herewith] ), are either without merit or need not be reached in light of our determination.