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Appellate Division, First Department Shows Little Mercy for Litigant that Filed Untimely Summary Judgment Motion

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  • Posted on: Jan 13 2023

By Jonathan H. Freiberger

As the Court of Appeals has explained it, “[s]ummary judgment permits a party to show, by affidavit or other evidence, that there is no material issue of fact to be tried, and that judgment may be directed as a matter of law, thereby avoiding needless litigation cost and delay. Where appropriate, summary judgment is a great benefit both to the parties and to the overburdened New York State trial courts.”  Brill v. City of New York, 2 N.Y.3d 648, 651 (2004) (citation omitted).  The same Court, recognizing the efficiency that summary judgment brings to litigation, stated that “[s]ince New York established its summary judgment procedure in 1921, summary judgment has proven a valuable, practical tool for resolving cases that involve only questions of law.”  Brill, 2 N.Y.3d at 650-51 (citation omitted).

The “timing” of a summary judgment motion is significant because it “may resolve the entire case.”  Brill, 2 N.Y.3d at 651.  In this regard, the Brill Court noted that, originally, the only timing requirement for a summary judgment motion was that it be made prior to joinder of issue.  The “court system[] request[ed]” a change from the New York State Legislature, however, because “the absence of an outside time limit for filing such motions became problematic, particularly when they were made on the eve of trial.  Eleventh-hour summary judgment motions, sometimes used as a dilatory tactic, left inadequate time for reply or proper court consideration, and prejudiced litigants who had already devoted substantial resources to readying themselves for trial.”  Id.

Thus, the Legislature amended CPLR 3212 to provide that:

(a) Time; kind of action. 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, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown.

“‘Good cause … requires a satisfactory explanation for the untimeliness-rather than simply permitting meritorious, nonprejudicial filings, however tardy.’”  Fafona v. 41 West 34th Street, LLC, 71 A.D.3d 445, 448 (1st Dep’t 2010) (quoting from Brill).  “[P]erfunctory claim[s] of law office failure” are insufficient to “excuse a late motion, no matter how meritorious.”  Id; compare, Panzavecchia v. County of Nassau, 2022 WL 17660482 (2nd Dep’t December 14, 2022) (recognizing the need for good cause but finding that “[s]ignificant outstanding discovery may, in certain circumstances, constitute good cause for a delay in making a motion for summary judgment.”)

In Miceli v. State Farm Mut. Auto. Ins. Co., 3 N.Y.3d 725 (2004), the Court reversed supreme court’s granting of an untimely summary judgment motion and reiterated that “if the merit of the motion itself constituted good cause, the statutory deadline would be circumvented and the practice of delaying such motions until the eve of trial encouraged.”  The Miceli Court also warned litigants of the importance of meeting deadlines by reiterating that “we made clear in Brill, and underscore here, statutory time frames — like court-ordered time frames — are not options, they are requirements, to be taken seriously by the parties. Too many pages of the Reports, and hours of the courts, are taken up with deadlines that are simply ignored.”  Miceli, 3 N.Y.3d at 726 – 27 (citation omitted).

On January 12, 2023, the Appellate Division, First Department, decided Miral, Inc. v. Kovac Media Group, Inc., in which in unanimously affirming the denial of an untimely summary judgment motion, stated:  

Defendants’ summary judgment motions were untimely, as they were filed two months after the court-ordered deadline expired, with no explanation for the delay in filing until defendants submitted their replies. Nor did the explanations offered by counsel rise to the level of “good cause.” First, the calendaring error on which counsel blames the late filing amounts to no more than law office failure, which is an insufficient basis for a finding of good cause where a party has filed a late summary judgment motion. Second, counsel asserts that he was unaware of the court-ordered 60-day deadline because of a purported glitch in the New York State Courts Electronic Filing system. However, the relevant deadline was set forth in a compliance conference order in 2018 and, as counsel concedes, the NYSCEF glitch affected only documents filed during a period of time in 2019. Defendants’ counsel should at any rate have been aware that there would be an order issued after the January 16, 2019 compliance conference, and should have taken care to file the motions within the applicable deadline after that order was issued. We decline to consider defendants’ arguments regarding the impact of the COVID-19 pandemic and any tolling provisions because they were raised for the first time on appeal.


Court and statutory deadlines should not be ignored. This is made plain by, among other things, the denial of meritorious summary judgment motions based solely on the fact that they were not timely made.

Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP.

This article is for informational purposes and is not intended to be and should not be taken as legal advice.

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