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L. ERIC JOHNSON, et al., respondents, v. TOWN OF FISHKILL, et al., appellants (and a third-party action).

DECISION ORDER

ORDERED that the amended order dated September 30, 1998, is reversed, and the motion for summary judgment is denied; and it is further,

ORDERED that the amended order dated November 23, 1998, is affirmed; and it is further,

ORDERED that the appellants are awarded one bill of costs.

Pursuant to CPLR 3212(a), "[a]ny party may move for summary judgment in any action, after issue has been joined * * * such motion shall be made no later than 120 days after the filing of the note of issue, except with leave of court on good cause shown". The plaintiffs' summary judgment motion, filed more than 270 days after the filing of the note of issue, was untimely. The court erred in granting the late motion, which was made without leave and without good cause shown for the delay ( see, Olzaski v. Locust Valley Central School District, 256 A.D.2d 320 [2d Dept., Dec. 7, 1998]).

The denial of the motion of the appellant Commercial Interior Contracting Corporation to file a jury demand nunc pro tunc was a proper exercise of discretion.

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JOHNSON v. TOWN OF FISHKILL
(Jun 21, 1999)