Kone v. Ritter Sysco Food Service, Inc.

In an action to recover damages for assault and negligent hiring, the plaintiff appeals from an order of the Supreme Court, Kings County (Hurkin-Torres, J.), dated January 30, 2004, which granted the motion of the defendant Ritter Sysco Food Service, Inc., for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated insofar as asserted against the defendant Ritter Sysco Food Service, Inc.

The Supreme Court improvidently exercised its discretion in considering the untimely motion of the defendant Ritter Sysco *628Food Service, Inc., for summary judgment in view of its failure to offer a satisfactory explanation for not serving the motion within 120 days of the filing of the note of issue as required by CPLR 3212 (a) (see Brill v City of New York, 2 NY3d 648 [2004]).

In light of our determination, we need not address the plaintiffs remaining contention. Prudenti, PJ., S. Miller, Ritter and Goldstein, JJ., concur.