Appeal by plaintiffs from an order of the Civil Court, Kings County (J. Sullivan, J.), dated November 18, 2002, which granted the motion by defendants Tatyana Shyartsblat and Handle Cab Corp. for summary judgment and denied plaintiffs' cross motion seeking dismissal of defendants' motion.

Order unanimously modified by providing that summary judgment is granted only in favor of defendant Handle Cab Corp.; as so modified, affirmed without costs.

Appeal with regard to defendant Shyartsblat is held in abeyance pending substitution for her of a personal representative.

Since defendant Shyartsblat is, as indicated by her attorney, deceased, and no substitution for her has been made pursuant to CPLR 1015 (a), the appeal with regard to her must be held in abeyance.

Defendants Shyartsblat and Handle Cab Corp. moved for summary judgment on the ground that plaintiffs failed to satisfy the threshold requirement of suffering a serious injury under Insurance Law § 5102 (d). The plaintiffs cross-moved seeking dismissal of defendants' motion on the ground that it was untimely.

The motion court providently exercised its discretion in considering the defendants' belated motion for summary judgment. A motion for summary judgment should be made within 120 days after the notice of trial is filed, "except with leave of court on good cause shown" (see CPLR 3212 [a]). Although the defendants' motion was untimely, they established good cause and the plaintiffs failed to demonstrate any prejudice (Rabadi v Atlantic & Pac. Tea Co., 268 AD2d 418 [2000]).

The affirmed medical reports submitted in regard to each plaintiff by defendants' doctors in support of the motion made out a prima facie case that plaintiffs did not sustain a serious [*2]injury pursuant to Insurance Law § 5102 (d). The reports stated that plaintiffs had resolved injuries. This shifted the burden to plaintiffs to come forward with sufficient evidence to overcome defendants' motion by demonstrating that they sustained a serious injury (Gaddy v Eyler, 79 NY2d 955 [1992]).

Inasmuch as plaintiffs failed to submit any papers opposing the motion on the merits, they failed to raise a triable issue of fact. Accordingly, the motion for summary judgment should have been granted in favor of defendant Handle Cab Corp.
Decision Date: December 19, 2003