You are here: / / Untimely Summary Judgment Motion Which Is Nearly Identical to a Summary...

Untimely Summary Judgment Motion Which Is Nearly Identical to a Summary Judgment Motion Already Before the Court Should Be Considered

The Second Department explained when an untimely summary judgment motion, which is nearly identical to a timely summary judgment motion already before the court, should be considered:

While the cross motion was made more than 120 days after the note of issue was filed and, therefore, was facially untimely …, an untimely cross motion for summary judgment may be considered by the court where, as here, a timely motion for summary judgment was made on nearly identical grounds … . “In such circumstances, the issues raised by the untimely cross motion are already properly before the motion court and, thus, the nearly identical nature of the grounds may provide the requisite good cause (see CPLR 3212 [a]) to review the merits of the untimely cross motion. Notably, a court, in deciding the timely motion, may search the record and award summary judgment to a nonmoving party” (…see CPLR 3212 [b]). Therefore, the Supreme Court should have entertained the plaintiff’s cross motion for summary judgment. Wernicki v Knipper, 2014 NY Slip Op 05324, 2nd Dept 7-16-14

 

You might also like
COUNTY NOT IMMUNE FROM SUIT ALLEGING NEGLIGENT MAINTENANCE OF DRAINAGE SYSTEM; INDEPENDENT CONTRACTOR MAY BE LIABLE FOR LAUNCHING AN INSTRUMENT OF HARM; FLOOD DAMAGE RESULTED FROM DREDGING OPERATION.
THE EVIDENCE DID NOT SUPPORT THE NEGLECT FINDING (SECOND DEPT).
DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW WHEN SHE MADE A LEFT TURN INTO PLAINTIFF’S PATH, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, STATEMENT IN A MEDICAL RECORD ABOUT PLAINTIFF’S SPEED WAS UNRELATED TO DIAGNOSIS OR TREATMENT AND WAS NOT SOURCED, THE STATEMENT SHOULD NOT HAVE BEEN CONSIDERED AS AN ADMISSION (SECOND DEPT).
MOTION FOR LEAVE TO FILE LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, DEFENDANT HAD ALREADY CONDUCTED A 50-h HEARING AND THEREFORE HAD NOTICE OF THE ESSENTIAL FACTS WITHIN ONE MONTH OF THE EXPIRATION OF THE 90-DAY TIME LIMIT.
CONFIRMED BANKRUPTCY PLAN DID NOT HAVE A RES JUDICATA EFFECT ON AN ACTION ON A MORTGAGE WHICH WAS PENDING WHEN THE BANKRUPTCY PROCEEDINGS WERE COMMENCED.
PLAINTIFF WAIVED THE OBJECTION TO A LATE ANSWER BY FAILING TO REJECT THE ANSWER WITHIN 15 DAYS OF RECEIPT; DEFENDANTS MOTION TO COMPEL ACCEPTANCE OF THE ANSWER SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​
In an Appeal from an Order Made Upon Appellant’s Default, Only Matters Contested Below Can Be Heard—Here the Only Matter Contested Below Was Appellants’ Request for an Adjournment to Obtain New Counsel—Relevant Review Criteria Explained
THE JURY FOUND PLAINTIFF SUFFERED PERMANENT INJURY IN THE TRAFFIC ACCIDENT BUT AWARDED $0 DAMAGES FOR FUTURE PAIN AND SUFFERING AND FUTURE MEDICAL EXPENSES; THE DAMAGES AWARD WAS AGAINST THE WEIGHT OF THE EVIDENCE AND SHOULD HAVE BEEN SET ASIDE (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

No Showing Attorney Had Acquired Any Client Confidences Before Changing Fir... Transactional Res Judicata Analysis Explained