Malitizis v. First Unum Life Insurance

—Order, Supreme Court, New York County (Harold Tompkins, J.), entered October 21, 1999, which denied plaintiffs application for leave to file a motion for summary judgment, unanimously reversed, on the law, the facts, and in the exercise of discretion, without *622costs, the application granted and the matter remanded for further proceedings.

Under the circumstances presented, Supreme Court abused its discretion when it denied plaintiffs application seeking leave to file a motion for summary judgment more than 120 days after the filing of the note of issue (see, CPLR 3212 [a]). We note in this regard that the proposed motion was premised upon the Court of Appeals decision in New England Mut. Life Ins. Co. v Doe (93 NY2d 122), which was decided after the 120-day period had expired. Moreover, defendant did not oppose plaintiffs application and does not do so on appeal. Concur — Nardelli, J. P., Ellerin, Lerner, Buckley and Friedman, JJ.