Zarnoch v Luckina, 2017 NY Slip Op 02233 (3d Dept. 2017)
“To the extent that the cross motion sought relief pursuant to CPLR 3211 (b), it was not subject to the time limit for summary judgment motions under CPLR 3212 (a) (see Siegel, NY Prac § 272 at 470 [5th ed 2011]). The cross motion was nevertheless properly denied because plaintiff failed to meet his burden of establishing that the affirmative defense was without merit as a matter of law”
**Plaintiff’s can do some real evil with this discrepancy in the 120 day rule
