3212(a) time period applies when motion is served

This is a no-brainer but one Plaintiff firm out there emphasizes that the 120 day rule in CPLR 3212(a) applies to when a motion is served.  Unsurprisingly, various judges have agreed with this nonsense.  This case directly states what all know: the time to file a motion is calculated from when the motion is served.

Finally, one parenthetical remark.  Why can’t we have e-filing in the Civil Courts?  It is embarrassing when New Jersey – with its byzantine ways of doing business – has made all their courts (Superior and Superior, Special Civil) e-filing while most of New York is still stuck in the mode of 1950’s file and the pray the clerk does not lose your motion.  OCA – do something already.

Mehulic v New York Downtown Hosp., 2017 NY Slip Op 06416 (1st Dept. 2017)

“The motion court properly deemed defendant’s summary judgment motion timely because it was made (that is, served) within 60 days after the filing of the note of issue, as per the court’s directive to the parties (CPLR 2211, 3212[a]; see Corchado v City of New York, 64 AD3d 429 [1st Dept 2009]).”

Pleadings not required on a motion for summary judgment

Wade v Knight Transp., Inc., 2017 NY Slip Op 05262 (2d Dept. 2017)

“Notwithstanding that CPLR 3212(b) requires that motions for summary judgment be supported by a copy of the pleadings, CPLR 2001 permits a court, at any stage of an action, to ” disregard a party’s mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced.  The record here is sufficiently complete, Freudenberg was not a party to the instant motions, and Wade and the infant plaintiff do not argue that they were prejudiced in any way by the Knight defendants’ failure to include those pleadings”

3211(b) motion not subject to 3212(a) time limitations

Zarnoch v Luckina, 2017 NY Slip Op 02233 (3d Dept. 2017)

“To the extent that the cross motion sought relief pursuant to CPLR 3211 (b), it was not subject to the time limit for summary judgment motions under CPLR 3212 (a) (see Siegel, NY Prac § 272 at 470 [5th ed 2011]). The cross motion was nevertheless properly denied because plaintiff failed to meet his burden of establishing that the affirmative defense was without merit as a matter of law”

**Plaintiff’s can do some real evil with this discrepancy in the 120 day rule

Amended cross-motion (no fee necessary)

Rodriguez v 2526 Valentine LLC, 2015 NY Slip Op 08620 (2d Dept. 2015)

I thought that each application in Supreme Court required the paying of a filing fee.  Those $45 fees and the $95 RJI really do add up.  But this is New York: “death by 1000 cuts”  In the federal system, a civil case number is $400.  That is the only fee you pay.  In New York, we start the $210 index number, $95 RJI, $45 motion fee, $30 NOI fee, $ 65  Jury fee, $35 Stip of discon fee.

But here is a case where one of the 1000 cuts is being bandaged: “Contrary to Valentine’s argument, plaintiff was not required to pay an additional filing fee when she filed her amended cross motion (see CPLR 8020[a]).”

The Reply that introduced a proper reply was itself proper

SAL Med., P.C. v Clarendon Natl. Ins. Co., 2015 NY Slip Op 51449(U)(App. Term 2d Dept. 2015)

“The defect in one of the peer review reports submitted by defendant with its original motion papers, in that it did not bear a signature, was properly and timely remedied when the identical peer review report, this time bearing a signature, was submitted by defendant in its reply papers, and there is no indication that plaintiff was prejudiced in opposing defendant’s motion by this defect in form”

The abbreviated Brill rule applies (again)

Michael Palmeri, M.D., PLLC v Allstate Ins. Co., 2015 NY Slip Op 51130(U)(App. Term 2d Dept. 2015)

“Defendant failed to make its motion within 60 days of the filing of the notice of trial, as required by the rules of Part 41 of the Civil Court, and failed to offer any explanation in the Civil Court for the untimeliness of its motion. Accordingly, the Civil Court properly denied defendant’s motion as untimely”

How can a rule that was never published in the law journal or set forth in a compliance conference order have precedential effect?  This is especially the case when you are limiting a party’s right to exercise a right it enjoys under the CPLR?

The 120-day requirement does not apply to pro-se actions in the lower courts

Bryan L. Salamone, P.C. v Digiacomo, 2015 NY Slip Op 25025 (App. Term 2d Dept. 2015)

“After issue was joined, the matter was transferred to the arbitration calendar (see Rules of the Chief Judge [22 NYCRR] § 28.2 [b]) in September of 2012. (The record is silent as to whether the matter was ever arbitrated.) In June of 2013, plaintiff moved for summary judgment. By order dated July 1, 2013, the District Court denied plaintiff’s motion as untimely, on the ground that the motion had been made more than 240 days after the matter had been “transferred to the arbitration.”

“The District Court erred in finding that plaintiff’s time to make the motion for summary judgment commenced upon the matter being “transferred to the arbitration calendar,” since there is no such provision which governs the timeliness of a motion for summary judgment (see CPLR 3212 [a]; UDCA 1001, 1301; see also Uniform Rules for the District Courts [22 NYCRR] § 212.10). Inasmuch as no notice of trial, the District Court equivalent of a note of issue (see Chimbay v Palma, 14 Misc 3d 130[A], 2007 NY Slip Op 50019[U] [App Term, 2d & 11th Jud Dists 2006]), or certificate of readiness for trial had been filed (see e.g. Vinueza v Tarar, 100 AD3d 742 [2012]; Farrington v Heidkamp, 26 AD3d 459 [2006]; cf. Arbay v Sunoco, Inc., 31 Misc 3d 148[A], 2011 NY Slip Op 50977[U] [App Term, 9th & 10th Jud Dists 2011]), and there is no indication that the court clerk had fixed a date for trial (see UDCA 1301), plaintiff’s time to make its motion for summary judgment had not commenced. “

Just another reason why the 120-day limitation to file dispositive motions should not apply in Civil Court and District Court.  First, the CPLR deals with a Note of Issue, not a Notice of Trial.  Second, when one party is pro-se, that silly formality is dispensed with.  Thus, eve of trial summary judgment motions would be allowed.   There is no “rational basis” for why a different set of rules should apply in the general civil part for a party that has representation as opposed to a party who elects not to have representation.


Partial summary judgment declined after motion

Pollenex Servs., Inc. v GEICO Gen. Ins. Co., 2014 NY Slip Op 50953(U)(App. Term 2d Dept. 2014)

“Upon a review of the record, we find that there is a triable issue of fact regarding the medical necessity of the services at issue. Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is denied. We decline plaintiff’s request to limit the issues for trial (see CPLR 3212 [g]).”

Notice of Entry is not what some think it means

All Boro Psychological Servs., P.C. v Travelers Prop. Cas. Co. of Am., 2014 NY Slip Op 24161 (App. Term 2d Dept. 2014)

(1) In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court (Devin P. Cohen, J.), on November 12, 2010, granted defendant’s motion for summary judgment dismissing the complaint. Nevertheless, the action subsequently proceeded to trial before Judge Johnny Lee Baynes. At the nonjury trial, defendant’s counsel advised the court of the existence of the summary judgment order and that the order had been issued in open court following oral argument. However, the court ruled that the order was not binding because it had not been served with notice of entry on plaintiff’s counsel. Following the trial, judgment was entered in favor of plaintiff in the principal sum of $1,061.63.

(2) (And for this, Justice Baynes was elevated to Supreme Court.  Yet, how many Supreme Court orders granting declarations of non-coverage [always out of Kings] have been nullified  due to the Civil Kings rule that the failure to serve an order with notice of entry means it never happened.  I shake my head when I see some of these short form orders, but then I say to myself, it is Civil Kings, nothing should surprise me)

(3) “A grant of summary judgment is the procedural equivalent of a trial (see Falk v Goodman, 7 NY2d 87, 91 [1959]; News Am. Mktg., Inc. v Lepage Bakeries, Inc., 16 AD3d 146 [2005]), and an order granting such relief is as final and as conclusively determinative of all issues in an action as is a judgment after trial (see Engel v Aponte, 51 AD2d 989 [1976]; Riley v Southern Transp. Co., 278 App Div 605 [1951]). Thus, since the grant of summary judgment operates as a final determination on the merits of the claims in question, once a court has granted such a motion based on the facts adduced before it, the doctrine of res judicata applies (see Buckley & Co. v City of New York, 121 AD2d 933 [1986]; Cebron v McBride Dev. Corp., 93 AD2d 876 [1983]; Eidelberg v Zellermayer, 5 AD2d 658 [1958], affd 6 NY2d 815 [1959]), as does the doctrine of law of the case. Therefore, an order granting summary judgment is binding on all other judges of coordinate jurisdiction (see Carbon Capital Mgt., LLC v American Express Co., 88 AD3d 933 [2011]), and the conclusive effect of such an order may not be fatally [*2]undermined, as it was here, by allowing the party whose action was dismissed a second chance to litigate the matter

(4) “We note in passing that, under the circumstances presented, even if the trial court thought that the order granting summary judgment was not enforceable at the time of trial, the better practice would have been to exercise its discretion and grant defendant’s counsel’s request for an adjournment so as to afford defendant an opportunity to take any steps necessary to render the order enforceable instead of wasting scarce judicial resources conducting a trial after summary judgment had already been granted to defendant.”


Motion to strike “3212(g) findings” denied

EMC Health Prods., Inc. v Geico Ins. Co., 2014 NY Slip Op 50786(U)(App. Term 2d Dept. 2014)

“On appeal, defendant fails to articulate a sufficient basis to strike the Civil Court’s CPLR 3212 (g) findings in plaintiff’s favor. Defendant’s denials admitted the receipt of the bills at issue (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U]; [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]), and plaintiff was not required to establish a CPLR 4518 foundation for the bills (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]).”

Here is the unanswered question.  Can a Plaintiff appeal the finding of a judge who refuses to make these 3212(g) findings?