CPLR R. 3212: It’s all about the timing

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

(f) Facts unavailable to opposing party

Alexandru v Pappas, 2009 NY Slip Op 08978 (App. Div., 2nd, 2009)

However, to the extent that the plaintiff's motion sought to compel the defendants to specifically perform their obligations under the stipulations of settlement, which is the ultimate relief sought in the action, that branch of the motion was, in effect, for summary judgment, which procedurally could not be granted, as issue had yet to be joined (see CPLR 3212[a]). Thus, that branch of the motion was properly denied.

Joson v G & S Realty 1, LLC, 2009 NY Slip Op 09620 (App. Div., 2nd, 2009)

Generally, unless a trial court specifies otherwise, a party has 120 days after the filing of a note of issue to move for summary judgment, after which it may do so only with "leave of court on good cause shown" (CPLR 3212[a]). This "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" (Brill v City of New York, 2 NY3d 648, 652). A trial court has discretion in determining whether to consider a motion for summary judgment made more than 120 days after the filing of a note of issue (see CPLR 3212[a]; Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124, 129). Here, the trial court providently exercised its discretion in denying the motion of the defendant TPD Construction Corp. for summary judgment dismissing the complaint and all cross claims insofar as asserted against it because it failed to timely file its motion (see CPLR 3212[a]; Brill v City of New York, 2 NY3d at 652; Gonzalez v 98 Mag Leasing Corp., 95 NY2d at 129).

Fontanez v Lazarus, 2009 NY Slip Op 09373 (App. Div., 1st, 2009)

In a stipulation so-ordered by the court, any motions by defendants for summary judgment were to be "served and filed" by November 21, 2007, and that while appellant served its motion on November 21, it did not file it until November 30. Accordingly, appellant was required, but failed, to show good cause for the late filing (Corchado v City of New York, 64 AD3d 429 [2009]).

Some courts have specific rules as to when motions can be filed.  Assume that in this case there was such a rule and because of that rule, the motion could not be filed within the timeline.  Whether or not the movant has a reasonable excuse may depend on duration between service and filing of the motion. 

North Fork Preserve, Inc. v Kaplan, 2009 NY Slip Op 09006 (App. Div., 2nd, 2009)

After extensive discovery, the defendants moved for summary judgment dismissing the remaining claims in the amended complaint. Although the defendants had made two previous motions for summary judgment, the third motion did not violate the general proscription against successive motions for summary judgment since it was based on deposition testimony and numerous documents that had been elicited after the prior motions were denied (see Auffermann v Distl, 56 AD3d 502; Kobre v United Jewish Appeal-Fedn. of Jewish Philanthropies of N.Y., Inc., 32 AD3d 218; Staib v City of New York, 289 AD2d 560).


Finally, the Supreme Court providently exercised its discretion in denying that branch of the plaintiffs' motion which was for leave to renew their opposition to the defendants' motion for summary judgment, since the alleged new evidence was improperly submitted for the first time in the plaintiffs' reply papers (see GJF Constr. Corp. v Cosmopolitan Decorating Co. Inc., 35 AD3d 535; Adler v Suffolk County Water Auth., 306 AD2d 229). In any event, the plaintiffs did not offer a reasonable justification for their failure to present this evidence on the prior motion (see CPLR 2221[e]; Williams v Nassau County Med. Ctr., 37 AD3d 594).

Compare this decision with Matapos Tech. Ltd. v Compania Andina de Comercio Ltda1, 2009 NY Slip Op 09713 (App. Div., 1st, 2009) ("In its reply, plaintiff submitted a supplemental affidavit containing endorsements to the notes, which had inadvertently been omitted on the initial moving papers. The court properly considered this submission because defendant had made an issue of the omission in response to the motion (see Matter of Kennelly v Mobius Realty Holdings LLC, 33 AD3d 380, 382 [2006]; Ryan Mgt. Corp. v Cataffo, 262 AD2d 628, 630 [1999]). ) and with McMullin v Walker, 2009 NY Slip Op 09438 (App. Div., 2nd, 2009) (The "Final Narrative" medical report of Dr. Jerome L. Greenberg, McMullin's chiropractor, was not in affidavit form and therefore was insufficient to raise a triable issue of fact (see Kunz v Gleeson, 9 AD3d 480; Doumanis v Conzo, 265 AD2d 296). In an attempt to cure that defect, McMullin submitted Dr. Greenberg's affidavit, along with the "Final Narrative" report, in a surreply entitled, "Supplemental Affirmation in Opposition." This was improper, and the Supreme Court should not have [*2]considered this submission (see Flores v Stankiewicz, 35 AD3d 804)).

Hsing Hsung Chuang v Whitehouse Condominium, 2009 NY Slip Op 09375 (App. Div., 1st, 2009)

To the extent plaintiffs argue that discovery is needed, they failed to demonstrate either that the required evidence is within defendants' exclusive knowledge or that they "at least made some attempt to discover facts at variance with [defendants'] proof" (see Voluto Ventures, LLC v Jenkens & Gilchrist Parker Chapin LLP, 44 AD3d 557, 557 [2007]).

The bold is mine.


1.  The decision also has an important discussion of CPLR § 2309(c)

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