The (un)timely motion for summary judgmentFebruary 18, 2022

BSS Med., P.C. v Metropolitan Prop. & Cas. Ins., 73 Misc 3d 146(A)(App. Term 2d Dept. 2021)

“A motion is made when the notice of motion is served (see CPLR 2211; Russo v Eveco Dev. Corp., 256 AD2d 566, 566 [1998]; Chimbay v Palma, 14 Misc 3d 130[A], 2007 NY Slip Op 50019[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]), and when a motion is served upon a party’s attorney by mail, service is complete upon mailing (see CPLR 2103 [b] [2]; Pietrafesa v Canestro, 130 AD3d 602 [2015]). Here, it is uncontroverted that the notice of trial, the Civil Court equivalent of a note of issue, was filed on June 14, 2018 [*2]and, thus, contrary to the Civil Court’s determination, defendant’s motion was timely when it was served on October 12, 2018.”

This is a relic of a bygone era, well should be. Yet, we still in 2022 have courts that do not engage in e-filing, and placement of the motion in the mail is still dispositive of when the 120-day or 60-day clock begins to run. I also believe Straniere was correct in finding that 3212(a) should not apply to lower courts. If pro-se, an NOT is unnecessary. Same is not true when two parties are attorney represented. NY would best be served by case management orders with cut-off dates.