BILL NUMBER:S6128

TITLE OF BILL:  An act to amend the civil practice law and rules, in
relation to motions for summary judgment

PURPOSE OF GENERAL IDEA OF BILL:  The purpose of this bill is to solve
what has become a vexing and frustrating problem encountered by many
attorneys: how to determine which deadline for a summary judgment
motion applies to a given case.

JUSTIFICATION:  CPLR 3212 (a) was amended by Chapter 492 of the Laws
of 1996 in an effort to curtail abusive motion practice, in which a
motion for summary judgment was often made immediately before trial,
resulting in unwarranted delay.

A principal difficulty, which has now arisen as a result of the 1996
amendments, stems from the undefined term "the court." At present,
deviations from the 120-day post-Note-of-Issue ("Nor) default deadline
may be found in County rules, part rules, individual judge's rules,
and decisions within each case. The information, where published, is
difficult to locate and may not be up-to-date.

Since the Court of Appeals' decision in Brill v City of New York, 2
NY3d 648 (2004) held that a failure to comply with the applicable rule
renders the motion fatally defective, absent "good cause" shown for
the delay, this legislation is needed to make identification of and
              

compliance with the appropriate deadline less burdensome. Indeed, the
confusion has already engendered inconsistent Appellate Division
decisions on whether confusion concerning the applicable rule is
itself "good cause" for missing the shorter deadline (contrast
Crawford v Liz Claiborne, Inc., 45 A.D.3d 284 15t Dept. 2007, with
Gomez v Penmark Realty Corp., 50 A.D.3d 607 15t Dept. 2008), and the
Court of Appeals' decision in Crawford v Liz Claiborne, Inc., 2008 NY
Slip Op 07989 (10/23/08), had to parse the language of two conflicting
rules to find that Brill did not apply.

This amendment would limit the search for a deadline shorter than the
statutory default to one place: the prior Orders in the specific case.

It also serves the salutary function of allowing Judges more
flexibility in setting summary judgment deadlines, taking into account
factors unique to each case, such as its complexities, outstanding
discovery, number of parties, and the number of parties seeking
summary judgment, as well as considerations which may change with
time, such as current trial calendar congestion.

LEGISLATIVE HISTORY:  A6693 of 2009 referred to codes.  05/27/11
referred to codes 01/04/12 referred to codes

FISCAL IMPLICATIONS:  This bill would have no financial impact on the
State.

EFFECTIVE DATE:  This act shall take effect immediately upon its
becoming law and shall apply to all actions pending or commenced on
and after such date.