TORRES v. WESTCHESTER DENTAL SERVICES

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Supreme Court, Appellate Division, Second Department, New York.

Stella TORRES, Respondent, v. WESTCHESTER DENTAL SERVICES, P.C., et al., Appellants.

Decided: October 29, 2001

FRED T. SANTUCCI, J.P., ANITA R. FLORIO, HOWARD MILLER and BARRY A. COZIER, JJ. Colleen H. Whalen (Ball & Rubin, LLP, Elmsford, N.Y. [Wayne M. Rubin] of counsel), for appellants. Roxanne Torres Beecher, White Plains, N.Y., for respondent.

In an action to recover damages for dental malpractice, the defendants appeal from an order of the Supreme Court, Westchester County (Colabella, J.), entered March 21, 2001, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

A motion for summary judgment must be made within 120 days of the filing of a note of issue “except with leave of court on good cause shown” (CPLR 3212 [a];  see, Gonzalez v. 98 Mag Leasing Corp., 95 N.Y.2d 124, 128, 711 N.Y.S.2d 131, 733 N.E.2d 203;  Olzaski v. Locust Valley Cent. School Dist., 256 A.D.2d 320, 321, 681 N.Y.S.2d 345).   The defendants' motion for summary judgment dismissing the complaint, filed more than eight months after the filing of the note of issue, was untimely.   Moreover, it was made without leave of the court and without good cause shown for the delay (see, Clifford v. Harrow Stores, 274 A.D.2d 370, 712 N.Y.S.2d 865;  Olzaski v. Locust Valley Cent. School Dist., supra).   Accordingly, the Supreme Court providently exercised its discretion in denying the motion.

The defendants' remaining contention is without merit.

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