CPLR R. 3212(a). 120 day rule – the Court of Appeals chimes in

Not too long ago I referred to Matt Lerner's post regarding a case set to be argued before the Court of Appeals where the issue involved CPLR R. 3212(a), otherwise known as the 120 day rule.  Here, I'll refresh your recollection (I know, I know):

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.

On September 24, 2004, plaintiff Craig Crawford brought a Human
Rights Law action in Supreme Court, New York County, against his
employer, Liz Claiborne, Inc., and other [*2]parties
alleging discrimination based on sexual orientation. On April 11, 2005,
the IAS Judge issued a preliminary conference order ("PCO") directing
that dispositive motions be made "per local rule."

At the time of the issuance of the PCO, Rule 17 of the Rules of
the Justices of the Supreme Court, Civil Branch, New York County
("Local Rules") provided that
"[u]nless specified otherwise in a particular case, pursuant to
CPLR 3212(a) all motions for summary judgment must be made no later
than 60 days after the filing of the note of issue."
The IAS Judge had individual part rules in addition to the Local
Rules, but at the time the PCO was issued had no individual part rule
regarding summary judgment motions.

On April 17, 2006, before the note of issue was filed, the Local Rules were amended, including an amended Rule 17 providing that
"[u]nless otherwise provided in a particular case in the
preliminary conference order or other directive of the Justice
assigned, a motion for summary judgment shall be made no later than 120
days after the filing of the note of issue, except with leave of court
for good cause shown."
Around the same time, the IAS Judge modified her individual part
rules adding the language "[a]bsent court order, post note of issue
dispositive motions shall be made within 60 days thereof." Thus, when
the instant note of issue was filed on May 15, 2006, the Local Rules
differed from the IAS Judge's individual part rules regarding the
deadline for filing a summary judgment motion. Under the IAS Judge's
individual part rules, a motion for summary judgment would be due on
July 17, 2006, whereas the parties would have 60 additional days under
the amended Local Rules.

Defendants' motion for summary judgment was made on July 19,
2006. On July 20, 2006, plaintiff moved by order to show cause to
strike defendants' motion as untimely. The IAS Judge denied the
application and instructed plaintiff to raise the issue of timeliness
in his response to the summary judgment motion. Thereafter, plaintiff
opposed the motion solely on the ground of untimeliness without
addressing the merits. At oral argument on September 18, 2006, the IAS
Judge determined that the motion was untimely but found that defendants
showed "good cause" for the delay in filing the motion. In that the
motion was otherwise unopposed on the merits, the IAS Judge granted
summary judgment for defendants.

Relying on Brill v City of New York (2 NY3d 648
[2004]), the Appellate Division, in a 3-2 decision, reversed,
reinstated the complaint, and remanded the case to the Supreme Court
(45 AD3d 284, 287 [1st Dept 2007]). Defendants appeal to this Court by
leave of the Appellate Division on a certified question.

We hold that defendants' motion for summary judgment, made 62 days after the [*3]filing of the note of issue, was timely and that Brill
is inapplicable to this case. At the time the PCO was entered, the IAS
Judge had no individual part rule; thus, "per local rule" could only
have referred to the Local Rules of Supreme Court, New York County. In
that the 120-day amended Local Rule was in effect at the time the note
of issue was filed, defendants' motion was actually timely.