Rule Has Strayed From Its Intended Purpose

New York Law Journal


It was not surprising to see the determination in Kershaw v. Hospital for Special Surgery (App. Div., 1st Dept.), featured in the NYLJ ("Split Court Rejects Hospital's Tardy Summary Judgment Bid," Jan. 2). Other cases before it had held that a true "cross-motion" is only one against the original movant, and that even a true cross-motion for summary judgment, if untimely without "good cause," can only be considered if it and the original timely motion are premised on the same factual predicate and legal foundation. However, the result (and dissent) points up that CPLR 3212 (a), as amended in 1996, has drifted very far from its intended path.

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