Rule Has Strayed From Its Intended Purpose

New York Law Journal

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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.

There is no question, and the point is made in Brill v. City of New York, 2 NY3d 648 (2004), as well as legislative history, that the 1996 amendment of CPLR 3212 requiring summary judgment motions within 120 days of the Note of Issue (unless an earlier deadline is set by "the court") was designed as a means to an end: to prevent last minute summary judgment motions which delayed trials. But Brill and cases like Kershaw have now turned the statute and its deadline into an end unto itself; nay, a holy grail, immutable, and enforced at all costs.

That the statute requires "good cause shown" for delay would in theory be a reasonable foundation for the strictness of its enforcement, except that CPLR 3101(d) has the exact same language with respect to delay in retaining an expert and, thus, providing mandated information, yet that requirement is often absolutely ignored (see Rivers v. Birnbaum, 102 AD3d 26 [2d Dept. 2012]).

Worse, CPLR 3212 (a), as enforced, now has an often pernicious effect. It is certainly a trap to the unwary, especially because identifying the correct deadline requires one to look through court rules, part rules, judge's rules, and orders in the case to see if "the court" shortened the deadline.

Beyond that, in some instances, the arbitrariness of the shortened deadlines is absurd, and make them appear to be geared towards preventing consideration of summary judgment motions on their merits. How else to explain why, for example, in Kings, where parties generally cannot get near a jury trial for six to eight months, and sometimes for more than a year, after note of issue, summary judgment motions must be made (because "the court" has so stated) within 60 days following the note of issue. Does that serve the statutory purpose?

Kershaw lamented delayed motions as an element of lack of respect for the statute and court rulings. I agree with the sentiment. Yet, it is tough to have great respect for laws which are enforced in an arbitrary manner and with such utter disregard for their intended statutory purpose.

David B. Hamm
New York, N.Y.

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