Rivera v City of New York, 2010 NY Slip Op 03773 (1st Dept. 2010)
“Defendant’s cross motion for summary judgment, which was made in response to a motion by plaintiff characterized by the motion court as one to restore the action to the calendar, should have been denied as untimely, as defendant failed to show good cause for making the cross motion more than 120 days after the filing of the note of issue (CPLR 3212[a]; Brill v City of New York, 2 NY3d 648, 652 [2004]). At least where, as here, the 120-day time limit had expired before the case was struck from the calendar, we reject defendant’s argument that the 120-day limit does not apply to cases that have been struck from the calendar. We note Brill’s express prohibition against consideration of unexcused, untimely motions no matter how meritorious or nonprejudicial (id. at 653, especially n 4; see Perini Corp. v City of New York, 16 AD3d 37, 39-40 [2005]).”
How does this case comport with the legislative intent behind the creation of the 120 day rule in the 1990s, which was to prevent eve of trial summary judgment motions?
