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The First Department Reiterates That Summary Judgment Motions Cannot Be Made Before Issue Is Joined

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  • Posted on: Jan 31 2022

By Jonathan H. Freiberger

A clear message that readers of this Blog are frequently left with is the importance of following the Court’s procedural rules, which often leads to the efficient flow of a litigation.  Today’s Blog will discuss the requirement in subsection (a) of CPLR 3212 that a motion for summary judgment cannot be made until after issue is joined.

Summary judgment is a procedural device that, if successful, can efficiently bring a matter to resolution without the need for a trial and the related preparation, time and expense attendant thereto.  Indeed, “[s]ummary judgment is designed to expedite all civil cases by eliminating from the Trial Calendar claims which can properly be resolved as a matter of law [and s]ince it deprives the litigant of his day in court it is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues.”  Andre v. Pomeroy, 35 N.Y.2d 361, 364 (1974) (citation omitted).  If, however, there are no triable issues of fact to be determined at trial, the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the Trial Calendar and thus deny to other litigants the right to have their claims promptly adjudicated.”  Id.

CPLR 3212 governs summary judgment motions and subsection (a), which provides for the timing of such motions, provides:

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.  (Emphasis added.)

[Eds. Note: generally speaking, issue is joined in litigation when a party responds to a pleading served on them.  Most often this is when the defendant serves an answer to the complaint.  When an answer interposes a counterclaim, however, the plaintiff is required to serve a reply and issue will not be deemed joined until the reply is served.]

A court may also grant a party summary judgment pursuant to CPLR 3211(c), which provides, in relevant part, that: “[u]pon the hearing of a motion made under subdivision (a) or (b) [of CPLR 3211], either party may submit any evidence that could properly be considered on a motion for summary judgment.  Whether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment.”  Generally, in order for a motion to dismiss pursuant to CPLR 3211(a) or (b) to be converted to a motion for summary judgment, the court must notify the parties of its intention to do so.  See, e.g., Vanderbeek v. Beckerle, 116 A.D.3d 764 (2nd Dep’t 2014).  However:

[t]here are nevertheless three circumstances under which a court’s failure to provide CPLR 3211(c) notice may be overlooked. One circumstance is when CPLR 3211(c) treatment is specifically requested not by one party, but by all of the parties or is at least requested by the same party that is aggrieved by the summary judgment determination. A second circumstance is when a dispute involves no questions of fact, but only issues of law argued by all parties, such as in the context of declaratory judgment actions involving an issue of statutory construction or the application of an unambiguous contractual provision. The third circumstance is when the respective submissions of both parties demonstrate that they are laying bare their proof and deliberately charting a summary judgment course.

Hendrickson v. Philbor Motors, Inc., 102 A.D.3d 251, 258 -59 (2nd Dep’t 2012) (numerous citations omitted).

In City of Rochester v. Chiarella, 65 N.Y.2d 92, 101 (1985), a property tax refund case, the Court made plain that “[a] motion for summary judgment may not be made before issue is joined (CPLR 3212[a]) and the requirement is strictly adhered to.”  (Citations omitted.)  In Rochester, defendants moved for summary judgment before plaintiff replied to counterclaims.  The Appellate Division granted partial summary judgment.  The Court of Appeals reversed, and the motion was denied without prejudice to renewal after “submission of a reply” from Plaintiff.  Rochester, 65 N.Y.2d at99.  

While the Rochester Court of Appeals agreed “with the holding implicit in the Appellate Division’s decision that [defendants] had the authority to move for accelerated judgment,” it held that “the motion is premature because plaintiff has not replied to the counterclaims.”  Rochester, 65 N.Y.2d at99.  The Court of Appeals noted the Appellate Division’s recognition of the operative rule “but [nonetheless] held that [plaintiff’s] complaint sought a declaration that the taxes were constitutionally levied and that no refunds were due [and] therefore … the counterclaims raised no new issue requiring a reply and it entertained [defendants’] motion.”  Rochester, 65 N.Y.2d at101.  The Court of Appeals disagreed and stated that “[t]he appropriate response to a counterclaim is a reply[, which] serves the same function with relation to a counterclaim that an answer serves to a complaint. Because [plaintiff] had not replied to [defendants’] counterclaim, their 3212 motion for summary judgment preceded joinder of issue and was untimely.”  Rochester, 65 N.Y.2d at101 (citations omitted).

On January 27, 2022, the First Department decided SHG Resources, LLC v. Sytr Real Estate Holdings LLC, a note and guaranty case.  In SHG, in lieu of interposing an answer to the complaint, defendants, borrower and guarantor, moved to dismiss the complaint.  [Eds. Note: some of the SHG facts were obtained from the underlying record available on NYSCEF.]  Plaintiff, lender, cross moved for summary judgment.  Supreme court denied defendants’ motion to dismiss and granted plaintiff’s cross-motion.  On appeal, the First Department affirmed the denial of defendants’ motion to dismiss.  However, the Court reversed supreme court’s order on plaintiff’s cross-motion for summary judgment so as to deny same “as premature, with leave to resubmit upon joinder of issues and, in so doing stated: 

The Court of Appeals has noted that the rule barring a pre-joinder motion for summary judgment is strictly applied. While CPLR 3211(c) permits the court, on notice to the parties, to treat a motion to dismiss as a motion for summary judgment before issue is joined, that is not the case here, where [plaintiff, lender,] moved directly for summary judgment; thus, a motion for summary judgment brought before a defendant has answered the complaint is premature and must be denied (see Valentine Tr. v Kernizan, 191 AD2d 159, 161 [1st Dept 1993]). [Plaintiff, lender,] asserts that this is an exceptional case because it was one where “both sides make it unequivocally clear that they are laying bare their proof and deliberately charting a summary judgment course” (Four Seasons Hotels v Vinnik, 127 AD2d 310, 320 [1st Dept 1987]). Four Seasons, however, did not deal with a CPLR 3212 motion, as here.  (Some citations omitted.)


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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