The 120 day time period (CPLR 3212[a]) to make a summary judgment motion applies even if an action is marked off the calendar

Understanding Summary Judgment Time Limits in Struck Cases

New York’s Civil Practice Law and Rules (CPLR) Section 3212(a) establishes a strict 120-day deadline for filing summary judgment motions after a note of issue is filed. This rule was designed in the 1990s to prevent last-minute motions that could delay trials and burden the court system. However, questions arise about whether this deadline applies when a case is struck from the calendar for various procedural reasons.

The First Department’s decision in Rivera v City of New York clarifies that defendants cannot use calendar strikes as a way to escape the 120-day time limit that applies when motions are served. This ruling reinforces the legislative intent behind the summary judgment timing rules and prevents strategic manipulation of court procedures.

Jason Tenenbaum’s Analysis:

Rivera v City of New York, 2010 NY Slip Op 03773 (1st Dept. 2010)

“Defendant’s cross motion for summary judgment, which was made in response to a motion by plaintiff characterized by the motion court as one to restore the action to the calendar, should have been denied as untimely, as defendant failed to show good cause for making the cross motion more than 120 days after the filing of the note of issue (CPLR 3212; Brill v City of New York, 2 NY3d 648, 652 ). At least where, as here, the 120-day time limit had expired before the case was struck from the calendar, we reject defendant’s argument that the 120-day limit does not apply to cases that have been struck from the calendar. We note Brill’s express prohibition against consideration of unexcused, untimely motions no matter how meritorious or nonprejudicial (id. at 653, especially n 4; see Perini Corp. v City of New York, 16 AD3d 37, 39-40 ).”

How does this case comport with the legislative intent behind the creation of the 120 day rule in the 1990s, which was to prevent eve of trial summary judgment motions?

Key Takeaway

The Rivera decision prevents defendants from circumventing CPLR 3212(a)‘s 120-day deadline by arguing that calendar strikes suspend the time limit. Courts will reject untimely summary judgment motions regardless of their merit, maintaining the integrity of procedural deadlines designed to ensure efficient case management and prevent trial delays.

Legal Update (February 2026): Since this 2010 post, there have been amendments to CPLR 3212(a) and related procedural rules governing summary judgment timing requirements. The courts have also issued additional decisions interpreting the application of these deadlines in cases involving calendar strikes and procedural dismissals. Practitioners should verify current CPLR provisions and recent case law to ensure compliance with updated summary judgment motion timing requirements.