Appeal from an order of the Civil Court of the City of New York, Queens County (Johnny Lee Baynes, J.), entered December 14, 2005. The order denied defendants' motion for summary judgment.

Order reversed without costs and defendants' motion for summary judgment granted.

In this action for personal injuries, defendants moved for summary judgment on the ground that plaintiff failed to satisfy the threshold requirement of suffering a serious injury under Insurance Law § 5102 (d). Defendants submitted affirmations from two doctors who examined plaintiff on defendants' behalf and found that there was a full range of motion in plaintiff's cervical and thoracic spines. Defendants also submitted an affirmation from a radiologist who examined MRIs taken of plaintiff's cervical spine and thoracic spine, and found that the bulging discs at C3-C4 and T6-T7 were degenerative in nature. Defendants' submissions shifted the burden to plaintiff to raise a triable issue of fact (see Gaddy v Eyler, 79 NY2d 995 [1992]). Since plaintiff did not submit any medical evidence in opposition, the motion should have been granted.

It is noted that, contrary to plaintiff's contention in the court below, the motion for summary judgment was timely. CPLR 3212 (a) provides that if no date is set by the court, a motion for summary judgment "shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown." A motion is made when a notice of motion is served (see CPLR 2211). In the instant matter, the notice of trial, the Civil Court equivalent of the note of issue, was filed on April 18, 2005 and defendants' motion was served on August 4, 2005. Although the return date of the motion was more than 120 days after the filing of the note of issue, the notice of motion was properly served on plaintiff pursuant to CPLR 2103 (b) within the 120-day period (see Russo v Eveco Dev. Corp., 256 AD2d 566 [1998]). The fact [*2]
that defendants had to re-notice the motion for a later date was not fatal to such motion (Rivera v Glen Oaks Vil. Owners, Inc., 29 AD3d 560 [2006]).

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: January 2, 2007