![The 120 day time period (CPLR 3212[a]) to make a summary judgment motion applies even if an action is marked off the calendar](https://cdn.jtnylaw.com/blog/the-120-day-time-period-cplr-3212a-to-make-a-summary-judgment-motion-applies-even-if-an-action-is-marked-off-the-calendar.avif)
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This article is part of our ongoing procedural issues coverage, with 201 published articles analyzing procedural issues issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
Looking for the complete rule? This post analyzes one CPLR 3212(a) deadline decision. For the full practitioner’s guide to CPLR § 3212 — deadlines, leading cases, and practice pointers — see CPLR § 3212 Summary Judgment: The New York Practitioner’s Guide.
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.
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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.
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Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
About This Topic
Procedural Issues in New York Litigation
New York civil procedure governs every stage of litigation — from pleading requirements and service of process to motion practice, discovery deadlines, and trial procedures. The CPLR creates strict procedural rules that can make or break a case regardless of the underlying merits. These articles examine the procedural pitfalls, timing requirements, and strategic considerations that practitioners face in New York state courts, with a particular focus on no-fault insurance and personal injury practice.
201 published articles in Procedural Issues
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
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