Untimely Summary Judgment Motions: Nearly Identical Grounds Rule – Long Island & NYC

Civil litigation in Long Island and New York City courts often involves complex timing requirements for procedural motions. Summary judgment practice presents particular challenges when multiple parties seek similar relief but fail to comply with statutory deadlines. A recent Second Department decision clarifies when courts may consider untimely motions, providing valuable strategic guidance for attorneys practicing throughout Nassau County, Suffolk County, and the five boroughs.

Court Ruling on Untimely Motion Practice

The Legal Standard Established

Lennard v Khan, 2010 NY Slip Op 00482 (2d Dept. 2010)

If an untimely MSJ by another party addresses identical issues of a timely moving party’s summary judgment motion, then the court must address the untimely motion for summary judgment.

“Where one party makes a timely summary judgment motion, the court may properly consider an untimely summary judgment motion, provided the late motion is based on “nearly identical” grounds as the timely motion (Perfito v Einhorn, 62 AD3d 846, 847 ; see Step-Murphy, LLC v B & B Bros. Real Estate Corp., 60 AD3d 841, 844-845; Ianello v O’Connor, 58 AD3d 684; Grande v Peteroy, 39 AD3d 590, 591-592; Miranda v Devlin, 260 AD2d 451, 452). In effect, the “nearly identical” nature of the grounds supporting both motions serves as good cause sufficient to permit review on the merits of the untimely motion (Grande v Peteroy, 39 AD3d at 592). “Notably, the court, in the course of deciding the timely motion, is, in any event, empowered to search the record and award summary judgment to a nonmoving party” (see CPLR 3212; Grande v Peteroy, 39 AD3d at 592).

Since the respondents’ motion was already properly before the court, it improvidently exercised its discretion in refusing to consider the separate motion of Prescod and Klass, made on identical grounds, on the ground that the separate motion was untimely made (see Joyner-Pack v Sykes, 54 AD3d 727; Grande v Peteroy, 39 AD3d at 591; Miranda v Devlin, 260 AD2d 451). Further, since the plaintiff did not challenge the movants’ contentions regarding serious injury, the separate motion should have been granted”

Strategic Implications for Long Island and NYC Litigation

The “Nearly Identical” Standard

This decision establishes that attorneys in Nassau County, Suffolk County, and New York City courts can benefit from timely motions filed by co-defendants or other parties. The key requirement is that the late motion must be based on “nearly identical” grounds as the timely motion.

Practical Applications in Personal Injury Cases

The Lennard decision has particular relevance in personal injury litigation common throughout Long Island and NYC. When multiple defendants face similar summary judgment arguments regarding serious injury thresholds, late-filing defendants may still obtain relief if their co-defendants filed timely motions on identical grounds.

CPLR 3212(b) and Judicial Authority

The decision reinforces that courts possess inherent authority under CPLR 3212(b) to search the record and award summary judgment to non-moving parties. This principle provides additional protection for attorneys who might otherwise lose summary judgment opportunities due to timing errors.

Motion Practice Strategy in Multi-Defendant Cases

Coordination Among Defense Counsel

This ruling highlights the importance of coordination among defense attorneys in multi-defendant litigation. When facing similar claims, defendants should consider whether joint motion practice or coordinated timing might provide strategic advantages.

Documentation and Good Cause Requirements

While “nearly identical” grounds can substitute for traditional good cause showings, attorneys should still document their reasoning and demonstrate the substantive similarity between timely and untimely motions.

Timing Considerations in New York State Courts

Statutory Deadlines and Extensions

New York’s summary judgment practice requires strict adherence to statutory deadlines. However, the Lennard decision provides a limited exception when multiple parties seek substantially identical relief.

Strategic Planning for Complex Litigation

Attorneys handling multi-party litigation in Long Island and NYC should develop comprehensive motion schedules that account for potential timing issues while maximizing opportunities for coordinated defense strategies.

Impact on Settlement Negotiations

The possibility that untimely motions may still receive consideration can affect settlement dynamics in multi-defendant cases. Plaintiffs must consider that additional defendants might obtain summary judgment even if they missed initial deadlines, potentially reducing overall recovery prospects.

Frequently Asked Questions: Untimely Summary Judgment Motions

Q: What constitutes “nearly identical” grounds for summary judgment?
A: The motions must address the same legal theories and factual issues. Minor variations in argument or emphasis typically don’t disqualify the late motion from consideration.

Q: Does this rule apply to all types of civil litigation?
A: Yes, the principle applies broadly across civil litigation, though it’s particularly relevant in personal injury, commercial, and professional liability cases with multiple defendants.

Q: Can plaintiffs benefit from this rule if co-plaintiffs file timely motions?
A: The principle should apply equally to plaintiffs, though most reported cases involve defendant scenarios where multiple parties seek summary judgment on similar liability or damages issues.

Q: How should attorneys document “nearly identical” grounds?
A: Late-moving parties should specifically reference the timely motion and demonstrate point-by-point how their arguments mirror the earlier filing.

Q: What happens if the court grants the timely motion but denies the untimely one?
A: Courts should explain why the grounds weren’t sufficiently similar or why other considerations justified different treatment of the motions.

Risk Management for Litigation Practice

This decision underscores the importance of careful calendar management and coordination with co-counsel. While the rule provides some protection for late filers, attorneys should never rely on this exception as a substitute for proper motion practice timing.

Appellate Practice Considerations

Preserving Issues for Appeal

When trial courts improperly refuse to consider untimely motions based on nearly identical grounds, the error may be reviewable on appeal. The Lennard decision provides clear precedent for challenging such judicial determinations.

Standards of Review

Appellate courts review motion practice decisions for abuse of discretion, but the Lennard standard creates a more definitive framework that may receive less deferential review when courts categorically refuse to consider substantially identical late motions.

Professional Development and Best Practices

Continuing Education for New York Practitioners

Given the evolving nature of motion practice and the strategic implications of decisions like Lennard, attorneys practicing throughout Long Island and New York City should prioritize continuing education in civil procedure and motion practice.

Technology and Calendar Management

Modern litigation management systems can help prevent timing errors while facilitating coordination among multiple counsel handling related motions.

Client Communication and Expectation Management

Attorneys should inform clients about motion deadlines and potential consequences of late filing, while also explaining available exceptions like the Lennard rule that might provide alternative paths to summary judgment relief.

Protecting Your Litigation Rights

Complex civil litigation in Long Island and New York City requires sophisticated understanding of procedural rules and strategic alternatives. The Lennard decision demonstrates how appellate courts continue to refine motion practice standards in ways that can significantly impact case outcomes.

Whether you’re facing tight motion deadlines, coordinating multi-defendant strategies, or appealing adverse motion practice rulings, the experienced litigation team at JTNY Law understands the nuances of New York civil procedure and how to maximize your chances of success.

Our attorneys stay current with the latest developments in motion practice and appellate law, ensuring that clients receive strategic guidance based on the most recent judicial interpretations and procedural innovations.

Don’t let procedural technicalities undermine your substantive legal rights. Our team knows how to navigate complex motion practice requirements while developing creative strategies that protect your interests throughout the litigation process.

Need experienced guidance on motion practice or civil litigation strategy? Contact our skilled litigation team at 516-750-0595 for comprehensive legal representation tailored to your specific case requirements.

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Legal Update (February 2026): The procedural requirements and judicial interpretations regarding untimely summary judgment motions under CPLR 3212 may have evolved since this 2010 analysis, particularly through subsequent appellate decisions refining the “nearly identical grounds” standard and court discretion in considering late motions. Practitioners should verify current Second Department precedent and any amendments to summary judgment practice rules that may affect timing requirements and good cause determinations.