The quaint Notice of Trial

Understanding the Notice of Trial in New York’s Lower Courts

New York’s civil court system employs different procedural mechanisms depending on the court level. While Supreme Court and County Court require parties to file a Note of Issue to place cases on the trial calendar, the Civil Court uses a Notice of Trial in cases where both parties are represented by counsel. This procedural distinction creates important timing consequences for summary judgment motions under CPLR 3212(a).

The 120-day rule for summary judgment motions serves to prevent last-minute dispositive motions that could delay trials after cases have been deemed ready for adjudication. Once a Note of Issue or its Civil Court equivalent is filed, defendants generally have 120 days to move for summary judgment unless they obtain leave of court on a showing of good cause. This deadline encourages parties to bring summary judgment issues to the court’s attention while meaningful trial preparation time remains.

The question of whether Civil Court’s Notice of Trial triggers the same 120-day deadline as Supreme Court’s Note of Issue has generated some debate. The functional equivalence between these documents suggests they should receive identical treatment for procedural timing purposes, though the different contexts in which they arise raises questions about whether this parallel extends to all situations.

Case Background

BQE Acupuncture, P.C. filed a no-fault insurance action in Civil Court Kings County against State Farm Mutual Automobile Insurance Company. The plaintiff filed a notice of trial on July 14, 2016, placing the case on the trial calendar. More than 120 days later, on November 23, 2016, the defendant served a motion for summary judgment.

The central procedural question was whether the defendant’s summary judgment motion was timely under CPLR 3212(a). This required the court to determine (1) whether the Notice of Trial in Civil Court operates equivalently to a Note of Issue for CPLR 3212(a) purposes, and (2) when a motion is considered “made” for purposes of the 120-day deadline.

Jason Tenenbaum’s Analysis:

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 ; Brill v City of New York, 2 NY3d 648, 651 ; Boereau v Scott, 140 AD3d 687 ; Exceptional Med. Care, P.C. v Fiduciary Ins. Co., 43 Misc 3d 75 ). “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

Legal Significance

The court’s ruling establishes that Civil Court’s Notice of Trial functions identically to Supreme Court’s Note of Issue for purposes of CPLR 3212(a)‘s 120-day deadline. This functional equivalence makes sense given that both documents serve the same purpose: signaling that a case is ready for trial and establishing a reference point for various procedural deadlines.

The decision also clarifies that a motion is “made” when served, not when filed with the court. This distinction becomes critical in Civil Court practice, where delays in court processing and filing can be substantial. The service date provides a clear, objective benchmark that parties control, whereas filing dates depend on court administration and can vary unpredictably.

The court’s application of strict timing requirements reflects the policy behind CPLR 3212(a): parties should not be permitted to delay trial preparation by filing late summary judgment motions after cases have been certified as ready for trial. The 120-day window provides adequate time for defendants to assess cases and move for summary judgment while preventing gamesmanship and excessive delay.

Practical Implications

Defense counsel in Civil Court cases must calendar the Notice of Trial filing date and ensure summary judgment motions are served within 120 days. The service date, not the filing date, controls. Given potential delays in Civil Court’s processing of papers, defendants should build in a buffer period and serve motions well before the deadline expires.

If circumstances prevent timely motion service, defendants should immediately move for leave to make a late summary judgment motion under CPLR 3212(a). The “good cause” standard requires a showing of reasonable justification for the delay, and courts exercise discretion in evaluating these applications. Mere oversight or attorney workload generally will not suffice; defendants need genuine reasons why they could not move within the 120-day period.

Plaintiffs should monitor whether defendants’ summary judgment motions are timely served. An untimely motion should be opposed on procedural grounds in addition to substantive arguments. Courts may overlook timing issues if not raised, so plaintiffs must affirmatively object to late motions that lack leave of court.

The decision also highlights systemic issues with Civil Court’s lack of mandatory e-filing in 2019. Electronic filing systems provide automatic time-stamping and eliminate disputes about when papers were filed or served. The delays and inefficiencies referenced in the decision could be substantially reduced through comprehensive e-filing implementation.

Key Takeaway

Civil Court’s Notice of Trial operates equivalently to a Note of Issue for summary judgment timing purposes under CPLR 3212(a). Defendants must serve summary judgment motions within 120 days of the Notice of Trial filing, with the service date controlling. Failure to meet this deadline requires obtaining leave of court on a showing of good cause, and courts will deny untimely motions lacking such permission.

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