In Gonzalez v. Mag Leasing Corp. 95 N.Y.2d 124 (2000) the Court of Appeals found that the lower court did not abuse its discretion by considering defendant's motion for summary judgment in a situation where discovery was incomplete at the time of the filing of the note of issue. In Gonzalez, defendants timely moved to vacate the note of issue. The summary judgment motion was made around the same time as the disposition on the motion to vacate the note of issue. Although the court record reflects that defendant's motion to strike the note of issue was not decided on the merits, it is evident that the note of issue was filed prematurely.