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FOMINA v. DUB REALTY, LLC

5255. 309282/12.

156 A.D.3d 539 (2017)

65 N.Y.S.3d 687

2017 NY Slip Op 08886

ANTONIA FOMINA, Respondent, v. DUB REALTY, LLC, et al., Appellants, and CENTURY VERTICAL SYSTEMS, INC., Respondent.

Appellate Division of the Supreme Court of New York, First Department.

Decided December 21, 2017.

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 A.D.3d 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...

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