BQE Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 2019 NY Slip Op 51887(U)
I never fully agreed with the assertion that CPLR 3212(a) applies to a “Notice of Trial”. The Note of Issue is a mandatory document in Civil Supreme Court and County Court practice, regardless of party status. In the lower courts, a Notice of Trial only kicks in if both sides are attorney represented. To me, that is significant enough to cast doubt on this line of reasoning. But would anyone besides me attempt to have the Appellate Division analyze this discreet issue?
The other issue is sad. I say “sad” because a Notice of motion is made when served. The lower courts are no e-filing courts and service requires mailing. As any practitioner knows, Civil Court Kings County is known for losing, misplacing or conveniently failing to calendar documents. The inefficiency of a uniform statewide lack of e-filing creates these types of cases. So now we are in 2020 and the lower courts STILL do not have mandatory e-filing? Maybe 2021
“It is uncontroverted that plaintiffs filed their notice of trial on July 14, 2016. Unless a court sets another date, a motion for summary judgment must be made no later than 120 days after the filing of the notice of trial, which is the Civil Court equivalent of a note of issue, except with leave of court on good cause shown (see CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648, 651 [2004]; Boereau v Scott, 140 AD3d 687 [2016]; Exceptional Med. Care, P.C. v Fiduciary Ins. Co., 43 Misc 3d 75 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). “A [*2]motion on notice is made when a notice of the motion . . . is served” (CPLR 2211). Defendant’s affidavit of service states that its summary judgment motion was served on November 23, 2016, which is over 120 days after plaintiffs had filed their notice of trial. Thus, defendant’s summary judgment motion was untimely
