CPLR R. 3212(a) — 120 day rule

CPLR R. 3212 Motion for summary judgment.
(a) Time; kind of action.

Matt Lerner, author of New York Civil Law, recently posted about a case about to be argued before the Court of Appeals.  The decision being appealed is Crawford v Liz Claiborne, Inc., 45 AD3d 284 (App. Div., 1st).  Mr. Lerner gives us the context:

In Crawford, the
parties entered into a scheduling order in New York County.  The
outside deadline to file summary judgment motions was pursuant to the
local rules.  The local rules provide that movants have an outside
deadline of 60 days after the filing of the note of issue, rather than
the 120-day deadline.

The defendant unfortunately
overlooked the local rules and, upon realizing the oversight, served
and filed its summary judgment motion a few days after the 60-day
deadline.  The trial court considered the motion, even though the
motion was beyond the 60-day deadline, and dismissed the complaint.
The Appellate Division, First Department reversed the Decision and Order, holding that an oversight regarding the court rules did not constitute "good cause" under Brill and CPLR 3212.  Justice Tom and Williams dissented.

The
Court of Appeals will address whether this type of oversight
constitutes "good cause."  New York Civil Law will keep you apprised of
the Court’s holding, which should be handed down in October.


Here is a brief excerpt of the Crawford decision::

At bottom, the principal issue on this appeal is whether good cause existed to allow Supreme
Court to consider a summary judgment motion that was untimely. In accord with the precedent
that we are required to follow, we conclude that good cause was lacking in this case. In so
holding, we certainly do not "take[ ] away the discretionary power of [a] trial court to excuse a de
minimis delay in [making a] summary judgment motion"; rather, we find that the de minimis
[*3]delay in this case was not satisfactorily explained

(Brill, 2 NY3d at 652 [" ‘good cause’ in CPLR 3212 (a) requires a showing of good cause
for the delay in making the motion—a satisfactory explanation for the
untimeliness—rather than simply permitting meritorious, nonprejudicial filings,
however tardy" (emphasis added)]; see Milano, 17 AD3d at 645 [summary
judgment motion made one day past deadline needed to be supported by good cause for the
delay]). Although we have every confidence that the IAS court would preside fairly and
impartially over the matter upon remand, plaintiff raises a reasonable concern about the
appearance of impartiality, and we accordingly direct that this matter be reassigned to another
Justice. In so doing, contrary to the unfortunate statements by the dissent, we neither "reproach"
nor "impugn[ ] the court’s impartiality"; nor, of course, does our mere disagreement with the IAS
court’s decision to consider the merits of the motion play any role in that direction. Finally,
contrary to the dissent, our concern about the appearance of impartiality is not founded upon
Supreme Court having decided a dispositive motion adversely to plaintiff.

There was a strong dissent.

CPLR R. 3212(a) is one of those little things that can turn into one of those big things if it’s overlooked or its importance underestimated.

Keep an eye on New York Civil Law for future developments.  Don’t forget to check here as well.

All the bold is mine.

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