ORDERED that the order is reversed insofar as appealed from, as a matter of discretion, with costs, and the matter is remitted to the Supreme Court, Queens County, to determine the appellant's motion for summary judgment dismissing the complaint insofar as asserted against it on the merits.
Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying the appellant's motion for summary judgment dismissing the complaint insofar as asserted against it as untimely (see, CPLR 3212[a]; Gonzalez v. 98 Mag Leasing Corp., 95 N.Y.2d 124; Medina v. Barbaro, 279 A.D.2d 615; Zwecker v. Clinch, 279 A.D.2d 572; Goodman v. Gudi, 264 A.D.2d 758). The motion was made only three days after the 120day period had expired (see, CPLR 3212[a]), as well as before a pretrial conference had been scheduled. Furthermore, the plaintiffs failed to demonstrate any prejudice from the delay.
RITTER, J.P., KRAUSMAN, H. MILLER and SMITH, JJ., concur.