When summary judgment can be made, and when it is already too late.

Summary judgment can be made once issue is joined, meaning after the answer is served. It is too late 120 days after the note of issue is filed, or on any earlier date the court set. Past that, you need leave of court on good cause shown, and a satisfactory explanation for the delay. Strength is not an excuse.

When can a defendant move for summary judgment in a New York case?

A defendant may move for summary judgment only after issue has been joined, which in practice means after the answer has been served. CPLR 3212(a) does not authorize the motion earlier. Before the answer, your vehicle is a motion to dismiss under CPLR 3211, which the court may elect to treat as one for summary judgment under CPLR 3211(c).

So there are two clocks. One opens the window. The other closes it.

The opening clock is the answer. Serve it, and the door is open. The closing clock is the note of issue, the filing that puts the case on the trial calendar. Everything about timing turns on that second filing.

Law: CPLR 3212(a); CPLR 3211(c).

What is the deadline to move for summary judgment after the note of issue?

The deadline under CPLR 3212(a) is 120 days after the note of issue is filed. The court may set its own cutoff instead, no earlier than 30 days after that filing, and the court’s date controls. A motion is made when it is served, not when it is filed. Past the deadline you need leave on good cause shown.

Read that sequence carefully, because three things trip up defendants who are otherwise well prepared.

• The 120 days run from the filing of the note of issue. Not from the trial date. Not from the certification conference. Not from the day the case is assigned to a trial part.
• A court-set date displaces the statutory 120 days. Preliminary conference orders, compliance conference orders, and individual part rules commonly shorten the period. If a shorter date exists in your file, that is your deadline.
• Under CPLR 2211, a motion is made when the notice of motion is served, so serving on day 120 counts. Counsel cannot extend the deadline by agreement; an extension needs the court’s approval.

The practical consequence is blunt. A defendant who waits for a trial date to appear before thinking about summary judgment has usually already lost the motion. By the time the case is called, the window closed months earlier.

Law: CPLR 3212(a); CPLR 2211.

What does “good cause” mean under Brill v. City of New York?

Good cause under CPLR 3212(a) means a satisfactory explanation for the delay in making the motion. It does not mean the motion is strong. It does not mean the other side suffers no prejudice. Brill v. City of New York settled that in 2004, and the Court of Appeals declined to reach the merits of the late motion.

The facts in Brill are ordinary. The plaintiffs filed the note of issue on June 28, 2001. The City moved for summary judgment on June 18, 2002, close to a year later. The City offered no explanation for the delay. Supreme Court decided the motion anyway, reasoning that judicial economy favored it and that the plaintiff showed no prejudice, and granted the City judgment. The Appellate Division affirmed.

The Court of Appeals reversed and denied the City’s motion, leaving the complaint standing, without deciding whether the City was right on the merits. Good cause, the Court held, means good cause for the delay in making the motion, not merely a meritorious and nonprejudicial filing, however tardy. In the Court’s words, “No excuse at all, or a perfunctory excuse, cannot be ‘good cause.'”

Five months later the Court of Appeals reinforced the point, describing statutory time frames and court-ordered time frames alike as requirements to be taken seriously by the parties, not options.

A winning motion filed late is still a late motion. The court never reads the good part.

What follows from Brill is a discipline, not a loophole. If you need more time, your explanation has to be about the delay itself, it has to be documented, and it is far safer to ask for relief before the deadline runs than to file late and argue afterward. A perfunctory line about counsel’s schedule is not an explanation. On that showing the motion is denied as untimely, and the claim is tried.

Cases: Brill v. City of New York, 2 N.Y.3d 648, 650-52 (2004); Miceli v. State Farm Mut. Auto. Ins. Co., 3 N.Y.3d 725, 726-27 (2004).

What must a defendant actually prove to win summary judgment?

A defendant moving for summary judgment must first make a prima facie showing of entitlement to judgment as a matter of law, tendering evidence sufficient to eliminate any material issue of fact. Only then does the burden shift to the plaintiff. Fail at step one, and the motion is denied regardless of how weak the opposition papers are.

The statute tells you what the package looks like. The motion is supported by affidavit, by a copy of the pleadings, and by other available proof such as depositions and written admissions. The affidavit must come from a person having knowledge of the facts, must recite all the material facts, and must show that there is no defense to the claim or that the claim has no merit. It is granted if, on all the papers and proof, judgment as a matter of law is warranted, and denied if any party shows facts requiring a trial of an issue of fact.

In a commercial case, the moving papers usually assemble in this order:

• An affidavit from a person with actual knowledge, not from your lawyer.
• The pleadings, so the court can see exactly what claim you are attacking.
• The operative documents, named specifically. The 2021 lease. The guaranty. The promissory note. The purchase order and the invoices.
• The deposition transcripts, with the admissions marked.
• Written admissions and interrogatory responses that lock the other side into a version of events.

Once you carry that burden, the plaintiff must produce evidentiary proof in admissible form showing a genuine factual issue for trial, or offer an acceptable excuse for not doing so. Conclusions, unsubstantiated allegations, and a hearsay affirmation from counsel do not do it. That is the rule from Zuckerman, and it is the reason a well-built defense motion is hard to answer with argument alone.

Summary judgment is won on the documents and testimony you already hold. It is not won on the theory you hope to develop later.

Law: CPLR 3212(b). Cases: Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986); Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985); Zuckerman v. City of New York, 49 N.Y.2d 557, 560, 562 (1980).

Why do defendants often move after limited discovery instead of at the pleading stage?

Defendants often move for summary judgment after limited discovery because summary judgment is an evidentiary motion and CPLR 3212(b) expects depositions and written admissions. A motion to dismiss tests the claim as pleaded. A well drafted complaint survives that test. The same claim can still collapse once the plaintiff’s own sworn testimony is on the record.

The choice is a sequencing decision. Make it deliberately, not by reflex.

There is a second reason to wait. A motion filed before the plaintiff is deposed hands the plaintiff a roadmap of your defense and an easy request for more discovery. A motion filed after the deposition uses the plaintiff’s own words.

Law: CPLR 3211(a); CPLR 3211(c); CPLR 3211(e); CPLR 3212(b).

Can the plaintiff defeat the motion by saying discovery is not finished?

A plaintiff can slow a motion by invoking CPLR 3212(f), which lets the court deny it or order a continuance where affidavits show that facts essential to oppose may exist but cannot then be stated. That risk is real on early motions. It is much weaker once the plaintiff has had a full chance to take discovery.

Note the wording. The plaintiff must show through affidavits that essential facts may exist and cannot yet be stated. A general complaint that discovery is incomplete is not the same thing as identifying what is missing and why it matters, and the relief is discretionary either way. Therefore, the timing of your motion is itself a defense against CPLR 3212(f). Move after the depositions you need, with the transcripts attached, and there is far less room for the argument.

Law: CPLR 3212(f).

What happens if the summary judgment deadline has already passed?

If the CPLR 3212(a) deadline has passed and you have no satisfactory explanation for the delay, the motion is untimely and the court should not reach its merits. Brill controls. A few narrow paths remain, and each depends on facts already in the file rather than on how good your argument is.

The paths worth checking, in order:

• Leave of court on good cause shown. Available under CPLR 3212(a), but the showing must explain the delay, not the merits, and the court’s discretion here is broad.
• A timely motion by another party. A court may, in its discretion, entertain an otherwise untimely cross motion where a timely motion sought relief nearly identical to what the cross motion seeks. Relief that is merely adjacent does not qualify.
• The court searching the record. In deciding a timely motion, the court may grant summary judgment to any party under CPLR 3212(b) without a cross motion, but that search is limited to the causes of action or issues that are the subject of the timely motion.
• Narrowing rather than winning. Where a motion is denied or granted in part, CPLR 3212(g) directs the court to ascertain, if practicable, which facts are not in dispute or are incontrovertible. A partial result shortens the trial.

If none of those apply, the answer is honest and unwelcome. The case is tried. The defense you would have written into a motion becomes the defense you present to a factfinder.

Law: CPLR 3212(a); CPLR 3212(b); CPLR 3212(g). Cases: Brill v. City of New York, 2 N.Y.3d 648 (2004); Filannino v. Triborough Bridge & Tunnel Auth., 34 A.D.3d 280, 281 (1st Dep’t 2006), appeal dismissed, 9 N.Y.3d 862 (2007).

What should you do next?

Three dates decide whether summary judgment is still available to you, and you can find all three tonight. Pull the file and write them down before anything else: the date your answer was served, the date the note of issue was filed, and any earlier cutoff in a court order or the assigned judge’s part rules.

• The date your answer was served. Before it, summary judgment is not on the table. If no answer has been served, the live question is whether a CPLR 3211 motion is worth making first.
• The date the note of issue was filed, if it has been filed. Add 120 days. That is your outside limit under the statute, measured to the day you serve the motion.
• Any court-ordered cutoff. Read the preliminary conference order, every compliance conference order, and the part rules. A shorter date replaces the 120 days.

Then work backward. Decide which claims can be beaten with documents and sworn testimony rather than argument, and name those documents out loud: the 2021 lease, the guaranty, the invoices, the emails that fix the delivery date. Identify the depositions that will produce the admissions your affidavit needs, and schedule them with time to spare, because the motion has to be drafted, sworn, and served inside the window, not started inside it.

If the deadline is close, ask the court for relief before it expires and get any consent so-ordered. If it has gone by, check whether a timely motion by a co-defendant covers nearly identical relief, and preserve your arguments for trial.

And if you are reading this at 2am with a complaint on the desk and no idea where the note of issue stands, that is the first question to bring to counsel at Prencipe International. The calendar is not a formality in New York summary judgment practice. It is the first element of the motion.