Untimely Summary Judgment Motions May Fail Despite Merits
Editors' Note: This article has been updated to reflect a Correction.
Emphasizing anew that an untimely made summary judgment motion will be denied outright, irrespective of its merits, a divided First Department in Kershaw v. Hospital for Special Surgery,1 affirmed the trial court's rejection of such a motion not brought within 120 days of the filing of a Note of Issue.
CPLR 3212(a), as amended in 1996, states:
Any party may move for summary judgment in any action, after issue has been joined; provided however, that the court may set a date after which no such motion may be made. If no such date is set by the court, such motion shall be made no later than 120 days after the filing of the note of issue, except with leave of court on good cause shown.
Prior to the amendment of CPLR 3212(a), there was no statutory time limit for a summary judgment motion. "So long as issue had been joined, a party could make a motion for summary judgment, even on the eve of trial, thereby disrupting the court's calendar and leaving an adversary little or no time to reply."2 "[T]he Legislature added the 120-day deadline to CPLR 3212(a) in 1996 at the request of the court system to ameliorate the problem of parties filing dilatory summary judgment motions…and the Court of Appeals has stated that it must be 'applied as written and intended.'"3 As the Court of Appeals elsewhere held, "the belated motion…was most burdensome for the court and for parties who had already prepared for trial (Mem of Senate in Support, op cit)."4 "Thus, the amendment to CPLR 3212(a) was a step toward alleviating the practice of 'eleventh hour' summary judgment motions."5
Critically, the local rules of certain jurisdictions and/or the individual rules of certain judges may require that summary judgment motions be brought by a date less than 120 days after the filing of a Note of Issue.6 A movant's failure to move for summary judgment within that time frame will likely cause the court to reject the motion regardless of whether it was filed within 120 days.
A party who seeks to move for summary judgment motion after the statutory or court-imposed deadline must obtain "leave of court on good cause shown."7 A trial court thus has discretion in determining whether to consider an untimely filed motion for summary judgment. "Good cause" requires a satisfactory explanation for the untimeliness of the motion, even if the motion has merit and the adversary is not prejudiced.8 Significantly, "[t]he court has the exclusive authority to extend the statutory deadline; mutual agreement of the parties without court approval, will not suffice."9
Bright Line With 'Brill'
A decade ago, the Court of Appeals in Brill v. City of New York drew a bright line based on the two elements of CPLR 3212(a): the statutorily imposed or court-imposed deadlines for filing summary judgment motions, and the showing of good cause by a late movant in order for its motion to be considered. In Brill, the Court of Appeals indicated that late-filed summary judgment motions are "another example of sloppy practice threatening our judicial system,"10 and pointed to its earlier decision, Kihl v. Pfeffer11 which affirmed dismissal of the complaint because the plaintiff failed to respond to a court order within the court-ordered time frame. Brill reiterated Kihl's statement that, "[i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity."12
Since Brill, the Court of Appeals has reiterated in varied contexts and on multiple occasions that statutorily or court-imposed deadlines must be obeyed.13 In the court's view, "statutory time frames—like court-ordered time frames—are not options, they are requirements to be taken seriously by the parties."14 In Gibbs v. St. Barnabas Hosp., the court addressed the rationale behind strict adherence to the rules:
The failure to comply with deadlines not only impairs the efficient functioning of the courts and the adjudication of claims, but it places jurists unnecessarily in the position of having to order enforcement remedies to respond to the delinquent conduct of members of the bar, often to the detriment of the litigants they represent. Chronic noncompliance with deadlines breeds disrespect for the dictates of the Civil Practice Law and Rules and a culture in which cases can linger for years without resolution. Furthermore, those lawyers who engage their best efforts to comply with practice rules are also effectively penalized because they must somehow explain to their clients why they cannot secure timely responses from recalcitrant adversaries, which leads to the erosion of their attorney-client relationships as well.15
In Kershaw, a medical malpractice action, defendant New York University Medical Center Hospital for Joint Diseases (HJD) timely moved for summary judgment. Co-defendant Hospital for Special Surgery responded with a motion it characterized as a "cross-motion," but which was not made returnable on the same date as HJD's dispositive motion and, in fact, was filed two months after the court-imposed deadline.16 The lower court granted HJD's motion and denied the "cross-motion," holding that "because the cross-motion was filed impermissibly late with no reason offered for the lateness, it should be denied."17
The majority in Kershaw affirmed, recognizing that "there may be situations where a meritorious summary judgment motion may be denied…."18 "However, the solution…is not for the courts to overlook or bend CPLR 3212(a) to fit the particular circumstances, but for 'practitioners [to] move for summary judgment within the prescribed time period or offer a legitimate reason for the delay.' In other words, Brill calls on the courts to lead by enforcing the words of the statute, rather than let attorney practice slowly eat away at the integrity of our judicial system."19 Ultimately, "'movants will develop a habit of compliance' with the statutory and court-ordered time frames, and late motions will include a good cause reason for the delay."20
In the view of the Kershaw court, "Brill expresses the Court's overall desire to curb 'sloppy' litigation practices, among them being late summary judgment motions."21 The court stressed that "[t]he dissent's approach of judging a motion's merits without consideration of why it was untimely, can only lead to uncertainty and additional litigation…."22