Late Motion for Summary Judgment Rejected, Even When Styled as a Cross-Motion to a Timely-Made Motion

On December 24, 2013, the First Department issued a decision in Kershaw v. Hospital for Special Surgery, 2013 NY Slip Op. 08548, clarifying that the CPLR-mandated deadline for filing a motion for summary judgment cannot be extended simply by styling the motion as a cross-motion to a timely made motion.

Kershaw involved an appeal from a medical malpractice action, not a commercial one, but the procedural point made by the decision applies to all litigation. In Kershaw, the plaintiff filed a Note of Issue on August 24, 2011; the trial court then ordered that summary judgment motions were to be made no later than November 14, 2011. On November 11, 2011, one defendant moved for summary judgment. On January 10, 2012--almost two months after the deadline for summary judgment motions--the other defendant "'cross-moved' for summary judgment without providing any explanation whatsoever for its delay." The trial court denied the second motion as untimely, a decision that a divided panel of the First Department affirmed.

The majority of the panel explained:

Brill v City of New York (2 NY3d 648 [2004]) addressed the recurring scenario of litigants filing late summary judgment motions, in effect ignoring statutory law, disrupting trial calendars, and undermining the goals of orderliness and efficiency in state court practice. Brill holds that to rein in these late motions, brought as late as shortly before trial, CPLR 3212(a) requires that motions for summary judgment must be brought within 120 days of the filing of the note of issue or the time established by the court; where a motion is untimely, the movant must show good cause for the delay, otherwise the late motion will not be addressed. . . .

Brill draws a bright line based on the two elements of CPLR 3212(a): the statutorily imposed or court-imposed deadlines for filing summary judgment motions, and the showing of good cause by a late movant in order for its motion to be considered. In Brill the Court of Appeals indicated that late-filed summary judgment motions are another example of sloppy practice threatening our judicial system, and pointed to its earlier decision, Kihl v Pfeffer (94 NY2d 118 [1999]), which affirmed dismissal of the complaint because the plaintiff failed to respond to a court order within the court-ordered time frame. Brill reiterates Kihl's statement that, if the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity.

. . .

We do not hold that when a summary judgment motion is filed past the deadline, the court must automatically reject it. Rather, we enforce the law as written by the legislature, and as explained in Brill. It is up to the litigant to show the court why the rule should be flexible in the particular circumstances, or, in the words of the statute, that there is good cause shown for the delay.

. . .

It is true that since Brill was decided, this Court has held, on many occasions, that an untimely but correctly labeled cross motion may be considered at least as to the issues that are the same in both it and the motion, without needing to show good cause. Some decisions also reason that because CPLR 3212(b) gives the court the power to search the record and grant summary judgment to any party without the necessity of a cross motion, the court may address an untimely cross motion at least as to the causes of action or issues that are the subject of the timely motion. The problem in the case at bar is that [defendant's] motion, in addition to being untimely, is not a true cross motion. . . .
To the extent [defendnat's] motion was directed at the complaint, as opposed to any cross claims by [the defendant that made the original motion], and was not made returnable the same day as the original motion, it was not a cross motion as defined in CPLR 2215. The rule is that a cross motion is an improper vehicle for seeking relief from a nonmoving party. While courts have deemed this mislabeling a technical defect which will be disregarded, particularly where the nonmovant does not object and it results in no prejudice to the nonmoving party, in this case the nature of nonmovant plaintiff's opposition is that there was prejudice because to the extent the court deems [defendant's] motion a cross motion, the Brill rule is ignored.

Allowing movants to file untimely, mislabeled "cross motions" without good cause shown for the delay, affords them an unfair and improper advantage.

(Internal quotations and citations omitted).

We have quoted the decision at length because we read it as making a point to the bar that goes beyond the particular rule interpreted here. The lesson here is that there are limits to the courts' often lenient approach to enforcing the requirements of the CPLR and their own rules. Practitioners who ignore the rules on the assumption that the court will overlook it so that the court can address the merits of an action do so at their peril.