Summary Judgment Deadline – Making the Motion vs Filing It

Connolly v 129 E. 69th St. Corp.,

___ AD3d ___, 2015 NY Slip Op 03450 [1st Dept., 2015]

The issue presented is whether the act of “filing” motion papers can be given controlling status for summary judgment deadline purposes. The motion court and the Appellate Division said “yes,” but the argument here is that it should not.

In this case, the assigned justice’s individual part rules set a deadline for summary judgment motions not based on the date the motion was “made,” but rather on the date it was “filed.” Motions were to be “filed” within 60 days of the filing of the note of issue. The movant “made” the motion within the time limit, but “filed” the papers the day after it expired. The judge denied the motion as untimely, and the Appellate Division affirmed.

The CPLR, as originally enacted, had no summary judgment deadline, and eve-of-trial motions were not barred (Kule Resources, Ltd. v Reliance Group, Inc., 49 NY2d 587 [1980]). If the opposing parties sustained a double burden in preparing for trial as well as opposing the motion, or if the court delayed the trial to deal with the eve-of-trial motion, too bad.

The amendment establishing the deadline came in 1996, and in 2004 the Court of Appeals held the deadlines were to be enforced strictly (Brill v City of New York, 2 N.Y.3d 648, 781 N.Y.S.2d 261 [2004]; Miceli v State Farm Mut. Auto. Ins. Co. , 3 N.Y.3d 725, 786 N.Y.S.2d 379 [2004]). The amended CPLR 3212 (a) sets a default deadline for summary judgment motions, by which such motions must be “made” not later than 120 days after the filing of the note of issue. An individual judge may set an earlier deadline after which summary judgment motions may not be “made,” not earlier than 30 days after the note of issue. A motion on notice is “made” by the simple act of serving the notice of motion or order to show cause and supporting papers (CPLR 2211).

Whether the papers are filed after the deadline, or whether the motion is returnable or submitted afterwards, are all irrelevant to the deadline set by CPLR 3212 (a). The First Department itself has so held (Derouen v Savoy Park Owner, L.L.C., 109 A.D.3d 706, 971 N.Y.S.2d 2 [1st Dept., 2013]; Gazes v Bennett, 38 A.D.3d 287, 835 N.Y.S.2d 1 [1st Dept., 2007]). In giving the motion court authority to shorten the deadline, the statute specifically states that “the court may set a date after which no such motion may be made.” [emphasis added] The statute, as written, gives the motion court no explicit authority to measure the deadline by the performance of some act other than “making” the motion, such as “filing” the papers, any more than it allows a deadline for the return date or the submission of the motion.

Now clearly, when proceeding by notice of motion, the motion papers must at some point be “filed” with the court, in the appropriate clerk’s office, with proof of service, and so the “filing” necessarily comes after the “making” of the motion. Filing allows the clerks to create the motion calendar so that the papers can be presented to the court in an orderly fashion. A motion brought on by order to show cause must be “filed” when the proposed order to show cause is presented to the court for signature. When the papers are “filed,” the County Clerk collects the motion fee (CPLR 8020 [a]), which was imposed by the state for its own budgetary reasons and has little or nothing to do with orderly procedure (see, In re Ficalora, 1 Misc.3d 602, 771 N.Y.S.2d 300 [Sup. Ct. Queens Cty., 2003]. Neither CPLR Article 22, governing motions generally, nor CPLR 3212 (a) speak of the motion being “filed,” only of it being “made.” That word is used only in CPLR 8020 (a), regarding the motion fee. Contrast this with the note of issue and CPLR 3402, where the significant act is specifically set as the “filing.”

Indeed, of the four possible dates for the deadline (making, filing, return or submission), the date of filing is the least significant and has the least to do with the determination of the motion or the policy considerations underlying the existence of the deadline at all. The only evident benefit of choosing the filing date is that the court can determine that date by looking at its own records, or the clerk’s receipt stamp on the papers, and not the movant’s affidavit of service. Even this may prove illusory where there has been some ministerial difficulty in the filing (see, Esdaille v. Whitehall Realty Co., 61 A.D.3d 435, 878 N.Y.S.2d 3 [1st Dept., 2009].

Finally, the Appellate Division opinion justifies its approval of the motion court’s choice by citing to its earlier decision in Corchado v. City of New York, 64 A.D.3d 429, 883 N.Y.S.2d 33 [1st Dept., 2009], but that decision in fact does not justify the result here. In Corchado, the deadline was fixed as of the “filing” of the motion by stipulation of the parties, not the discretion of the court, and the rationale was that the parties were free to chart their own procedural course.

I submit, therefore, that the choice of the filing date for the deadline is unjustified by the language of CPLR 3212 (a), and is illogical to boot.

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