

Fomina v DUB Realty, LLC (2017 NY Slip Op 08886)





Fomina v DUB Realty, LLC


2017 NY Slip Op 08886


Decided on December 21, 2017


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on December 21, 2017

Tom, J.P., Friedman, Renwick, Kahn, Kern JJ.,


5255 309282/12

[*1]Antonia Fomina, Plaintiff-Respondent,
vDUB Realty, LLC et al., Defendants-Appellants, Century Vertical Systems, Inc., Defendant-Respondent.


Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for appellants.
Robert G. Spevack, New York, for Antonina Fomina, respondent.
Gottlieb Siegel & Schwartz, LLP, New York (Michele Rosenblatt of counsel), for Century Vertical Systems, Inc., respondent.

Order, Supreme Court, Bronx County (Donna M. Mills, J.), entered May 5, 2016, which, in this action for personal injuries allegedly sustained when plaintiff tripped and fell while exiting an elevator in the apartment building in which she lived, denied as untimely the motion of defendants DUB Realty LLC and JRC Management LLC for summary judgment dismissing the complaint as against them, unanimously reversed, on the law, without costs, the order vacated, and the matter remanded for further proceedings.
In assessing the timeliness of a motion for summary judgment, the proper measure is whether the motion is served within 120 days of the filing of the note of issue, not whether the motion is filed within that time frame (see Derouen v Savoy Park Owner, L.L.C., 109 AD3d 706 [1st Dept 2013]; CPLR 2211). Here, the motion was timely served, and therefore the matter is remanded to the motion court for a consideration of the merits of the summary judgment motion in the first instance (see e.g. Higgins v Consolidated Edison Co. of N.Y., Inc., 93 AD3d 443 [1st Dept 2012]; Commission of the State Ins. Fund v Weissman, 90 AD3d 417 [1st Dept 2011])).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 21, 2017
DEPUTY CLERK


