Key Takeaway
New York's Third Department clarifies that CPLR 3211(b) motions are not subject to the 120-day time limits that govern summary judgment motions under CPLR 3212(a).
Understanding Motion Time Limits: When CPLR 3211(b) Differs from Summary Judgment Rules
New York’s procedural rules establish specific timeframes for different types of motions, but these deadlines don’t always apply uniformly. A recent Third Department decision highlights an important distinction between motions to dismiss under CPLR 3211(b) and traditional summary judgment motions under CPLR 3212(a). While summary judgment motions are subject to strict 120-day timing requirements, motions challenging the sufficiency of pleadings under CPLR 3211(b) operate under different rules.
This distinction becomes particularly significant in litigation strategy. Attorneys seeking to challenge a plaintiff’s pleadings for legal insufficiency aren’t bound by the same temporal constraints that govern motions served under CPLR 3212(a). However, as the court noted, freedom from timing restrictions doesn’t guarantee success—the moving party must still meet their burden of proof.
Jason Tenenbaum’s Analysis:
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 ). 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
Key Takeaway
While CPLR 3211(b) motions escape the 120-day deadline that constrains summary judgment practice, they still require meeting substantive legal standards. This timing flexibility creates strategic opportunities for challenging pleading sufficiency, but success depends on demonstrating that defenses lack merit as a matter of law—not merely on avoiding procedural deadlines.
Legal Update (February 2026): Since this 2017 post, New York’s Civil Practice Law and Rules may have been amended, including potential changes to CPLR 3211 and 3212 timing provisions, procedural requirements, or judicial interpretations of motion practice standards. Practitioners should verify current statutory language and recent appellate decisions to ensure compliance with any updated motion timing requirements or procedural modifications.
