___ AD3d ___, ___ NYS2d ___, 2015 NY Slip Op 03952 [4th Dept., 2015]
Can the parties stipulate to extend the 120-day deadline set by CPLR 3212 (a) for summary judgment motions? If they do, may the court honor the stipulation? The Appellate Division here answered that the court acted within its discretion by considering the motion on its merits, and granting the motion, dismissing the complaint. The court held that the plaintiff had waived any objection to the untimely motion by consenting to it in advance.
Clearly, the court was not required to accept the stipulation. In Coty v County of Clinton, 42 A.D.3d 612 [3rd Dept., 2007], the motion court rejected the parties’ stipulation, denied the untimely motion, and the Appellate Division affirmed. Does it retain discretion to do so? The seminal decision here, of course, is Brill v City of New York, 2 NY3d 648 , where the Court of Appeals stated unequivocally that the statute requires “good cause” for a late motion, and “[n]o excuse at all, or a perfunctory excuse, cannot be good ‘cause’ ” (Brill v City of New York, 2 NY3d 648, 652)
Here, the Appellate Division held that the plaintiff had waived any objection by entering into the stipulation, and that the court did indeed retain discretion to accept the stipulation and extend the deadline based on it and nothing else. The court held that Brill had not established a non-waivable public policy against extension of the deadline.
There was a one-judge dissent, which did view Brill as establishing a public policy against late summary judgment motions without sufficient excuse.