Senate Bill S6232

                                 BILL NUMBER:  S6232

 TITLE OF BILL :
An act to amend the civil practice law and rules, in relation to the
time for the making of motion to dismiss for failure to state a cause
of action and motion for summary judgment


This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Advisory
Committee on Civil Practice.

By chapter 492 of the Laws of 1996, the Legislature amended CPLR rule
3212(a) to provide that a motion for summary judgment shall be made
within the time set by the court or, if no such time is set, "no later
than one hundred twenty. days after the filing of the note of issue,
except with leave of court on good cause shown." The purpose of this
amendment was to prevent the late filing of motions for summary
judgment, often made on the eve of trial and resulting in a delay of
the scheduled trial. This was a positive step but, in recent years,
court decisions have demonstrated that further statutory reform is
needed to insure that motion practice does not produce unnecessary
trial delays. In Santana v. City of New York, 6 Misc. 3d 642 (Civ.
Ct., N.Y. Co. 2004), the court permitted a motion to dismiss for
failure to state a cause of action, made pursuant to CPLR rule
3211(a)(7), after the time permitted for a motion for summary
              

judgment. Currently, CPLR 3211(e) allows such a motion to dismiss to
be made at any time, thereby authorizing motions delaying trials.

This measure would supply the needed reform. first, it would amend
CPLR 3211(e) to respond to the recent opinion of the Court of Appeals
in Janssen v.  Incorporated Village of Rockville Ctr., (2008 NY Slip
Op 09962), by codifying affirmatively that there is no time limit on a
motion to replead, and the plaintiff is not required, in response to a
motion to dismiss, to ask for permission, in the alternative, to
replead. We have taken note of the questions raised by the Court in
Janssen and, on the advice of our Advisory Committee, we offer this
amendment to clarify the original legislative intent (see, L. 2005, c.
616) to preserve the right to move to replead. In so doing, we reject
the suggestion that a specific time limit be imposed on repleader in
favor of a reasonableness standard applicable on a case-by-case basis
in the court's discretion. The court is in the best position to
determine whether, for example, upon the plaintiff's motion to replead
after some discovery has been conducted, the plaintiff has evidence
that its original pleading, although perhaps inartfully-drawn, stated
a valid cause of action, and that recovery could be had on the
dismissed claim. Our Committee believes that a 30day time limit, if
imposed, would preclude even amendments under CPLR 3025(b), if the
court concluded that the 3025(b) motion could have been brought as a
motion to replead within the 30-day period.

This measure would place the same time limitation on motions made
pursuant to CPLR rule 3211(a)(7) that would apply to motions for
summary judgment under rule 3212.  Since a party should be aware of
the basis for a rule 3211(a)(7) motion at the pleading stage, there
would be no prejudice resulting from a rule requiring such a motion to
be made no later than a summary judgment motion.

On the advice of our Committee, we have also considered whether a
necessary consequence of the 1996 amendment is that a trial must be
held even if there are no disputed issues of fact where a meritorious
summary judgment motion is submitted, but after the time permitted.
In Brill v. City of New York, 2 N.Y.3d 648 (2004)) the Court of
Appeals noted the quandary:


"If this practice is tolerated and condoned, the ameliorative statute
is, for all intents and purposes, obliterated. If, on the other hand,
the statute is applied as written and intended, an anomaly may result,
in that a meritorious summary judgment motion may be denied, burdening
the litigants and trial calendar with a case that in fact leaves
nothing to try."

The Brill majority opted to require a trial, while the dissent would
have chosen to permit the motion to be heard.

As the Court recognized, neither result is satisfactory. Guided by our
Committee, we have, therefore, attempted to develop a procedure that
would continue to discourage late summary judgment motions, but not
necessarily require a trial where there are no disputed factual
issues. This measure is the result.

We have modeled our proposal after CPLR 306-b, where the court can
excuse the late service of a summons and complaint. The critical new
language authorizes a court, in its discretion, to consider a late
summary judgment motion for "good cause shown" or "in the interests of
justice." (see Mead v. Singleman, 24 A.D.3d 1142 ( 3d Dept., 2005),
for a good description of the differences between the two standards.)
This permits the trial court to grant a motion - even a late motion -
in order to avoid the time, burden and expense of a trial where none
is needed. At the same time, it will significantly discourage late
motions because a party cannot be assured that a court will even
consider such a motion. Since the authority given to the trial court
is completely discretionary, a party will have no right to have the
motion heard if it is made late.

We believe that this measure continues the policy that it strongly
supports of ending dilatory practice while providing an alternative
other than the two that the Court of Appeals found unsatisfactory in
Brill.

This measure, which would have no fiscal impact on the State, would
take effect immediately.

 LEGISLATIVE HISTORY
None. New proposal.