Metro Psychological Servs., P.C. v American Tr. Ins. Co., 2019 NY Slip Op 51614(U)(App. Term 2d Dept. 2019)
“Contrary to plaintiff’s contention, defendant’s motion for summary judgment dismissing the complaint was not untimely under CPLR 3212 (a). CPLR 3212 (a) provides that a motion for summary judgment “shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown” (see also Brill v City of New York, 2 NY3d 648, 651 [2004]). A motion is made when the notice of motion is served (see CPLR 2211; Russo v Eveco Dev. Corp., 256 AD2d 566, 566 [1998]; Chimbay v Palma, 14 Misc [*2]3d 130[A], 2007 NY Slip Op 50019[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]), and when a motion is served upon a party’s attorney by mail, service is complete upon mailing”
The 120-day clock runs when the motion served. Correction – I shall correct this: the clock “stops” when the motion is served. But while I am correcting this, I believe we are probably one of the last states that has not moved to e-filing in all courts. It is really embarrassing that Civil Court and some Supreme Courts are still paper courts. Go to Florida, NJ, CA, NV, MA (to name a few) and you will see that paper filing has been abandoned, like leaded gas and the blackberry. Why are we so behind in New York? Hello OCA? Are you reading? It is almost 2020 – how come every court is not an e-file court?
One Response
The decision doesn’t say The 120-day clock runs when the motion served.
this decision says the 120-day clock starts running when the NOT filed and the mailbox rule applies to a motion.