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

Last reviewed: September 2026.

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

CPLR 3212(a) supplies a 120-day default period after filing of the note of issue, subject to a court-set deadline permitted by the statute and leave on good cause shown. A motion on notice is made by service. 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 ).”

Jason’s original question:

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

Rivera rejected a claimed exemption where the period had expired before the case was struck from the calendar. Without a satisfactory explanation for the lateness, the merits alone do not save an untimely summary judgment motion, maintaining the integrity of procedural deadlines designed to ensure efficient case management and prevent trial delays.

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The chronology limits Rivera’s holding

Rivera v City of New York was decided on May 4, 2010. The important sequence was that the summary-judgment period had already expired before the action was struck from the calendar. The City later cross-moved in response to the plaintiff’s application to restore the case. It gave no sufficient explanation for the late dispositive motion.

The First Department reversed the grant of summary judgment and returned the case for further proceedings. It expressly tied its calendar ruling to the fact that the deadline expired first. Preserve that qualification when citing the decision. The opinion does not decide every possible effect of an order vacating a note of issue before a deadline runs.

Do not treat calendar events as interchangeable

A case can be marked off a calendar, restored to a calendar, or become subject to an order addressing the note of issue. Those descriptions are not enough to calculate a motion deadline. Read what the order actually vacates or restores and when it takes effect.

For a working chronology, collect the filed note of issue, the scheduling order, the order removing the case from the calendar, the restoration application and the challenged motion’s proof of service. Record the dates from the documents rather than relying on a docket label or an attorney’s recollection.

The question in Rivera was not whether the motion looked meritorious. Brill explains why merits and lack of prejudice cannot substitute for an explanation of untimeliness. An argument that the case was not approaching trial did not create an unrestricted opportunity to move after the deadline had expired.

A cross-motion label does not restart the period

Identify what the opponent’s motion asks the court to decide. A restoration application does not by itself place every merits issue before the court. In Rivera, responding to that application with a summary-judgment cross-motion did not avoid the lateness problem.

And counsel contemplating making a cross-motion should specify what relief they are seeking and their own deadline. If the basis of the cross-motion is a doctrine involving a tardy cross-motion that addresses the same issues as a timely motion, research the doctrine and its applicability; Rivera is not authority for a general exception covering any cross-motion.

The Zarnoch note concerns a different mechanism: dismissal of a defense under CPLR 3211(b). It should not be read as permission to relabel a request for summary judgment.

What to request when more time is genuinely needed

Seek an express scheduling determination supported by the reason for the requested change. Preserve the order. An adversary’s agreement to a later briefing date is not necessarily approval of a later dispositive-motion deadline.

Reeps involved a course established with the court’s consent. It is useful when reviewing an actual series of orders and stipulations, not as a reason to assume consent from silence.

A client receiving notice that a case has been restored should provide counsel with the earlier orders, not just the newest notice. The old deadline can remain important even when the court has begun managing the case again.

Historical note: Rivera rejected revival of a deadline that had expired before the calendar strike; CPLR 3212(a) and the actual scheduling orders govern a current file.

Connect to the Encyclopedia

Start with the CPLR 3212 summary-judgment hub. These notes distinguish the deadline, the relief requested and the evidence needed:

• Maynard: missing discovery versus known facts
• B.Y.: why a stand-alone subdivision (g) motion failed
• Custis and the lower-court timing dispute
• Metro: service date and the insurer’s failed proof

For a pending motion, contact the firm with the trial-readiness filing, scheduling orders, served papers and proof of service. This historical discussion is general information, not case-specific advice.