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GOOD CAUSE FOR DELAY IN FILING A DISPOSITIVE MOTION CAN NOT BE RAISED FOR THE FIRST TIME IN REPLY PAPERS, COURT SHOULD NOT HAVE CONSIDERED THE MOTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that it is improper for a court to consider whether there was “good cause” for making an untimely dispositive motion when the “good cause” argument is raised for the first time in the reply papers:

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Defendants’ summary judgment motion was made 618 days after the deadline set forth in the court’s scheduling order and 204 days after the filing of the note of issue. Defendants did not make the motion in time to be heard on the court’s November 21, 2016 motion calendar. Nonetheless, defendants’ moving papers failed to address the issue of “good cause” required to make a summary judgment motion more than 120 days after the filing of the note of issue or after the date established by the court in a scheduling order (CPLR 3212 [a]…). Plaintiffs opposed the motion on the ground that it was untimely. It was only in reply papers that defendants addressed the issue of “good cause.” The court considered the merits of the motion, granted summary judgment to defendants and dismissed the complaint. That was error.

It is well settled that it is improper for a court to consider the “good cause” proffered by a movant if it is presented for the first time in reply papers… . Defendants also failed to move to vacate the note of issue. The motion should thus have been denied as untimely (see CPLR 3212 [a]), and the court should have declined to reach the merits. Mitchell v City of Geneva, 2018 NY Slip Op 00740, Fourth Dept 2-2-18

CIVIL PROCEDURE (REPLY PAPERS, GOOD CAUSE FOR DELAY IN FILING A DISPOSITIVE MOTION CAN NOT BE RAISED FOR THE FIRST TIME IN REPLY PAPERS, COURT SHOULD NOT HAVE CONSIDERED THE MOTION (FOURTH DEPT))/REPLY PAPERS (GOOD CAUSE FOR DELAY IN FILING A DISPOSITIVE MOTION CAN NOT BE RAISED FOR THE FIRST TIME IN REPLY PAPERS, COURT SHOULD NOT HAVE CONSIDERED THE MOTION (FOURTH DEPT))/GOOD CAUSE (GOOD CAUSE FOR DELAY IN FILING A DISPOSITIVE MOTION CAN NOT BE RAISED FOR THE FIRST TIME IN REPLY PAPERS, COURT SHOULD NOT HAVE CONSIDERED THE MOTION (FOURTH DEPT))/REPLY PAPERS (GOOD CAUSE FOR DELAY IN FILING A DISPOSITIVE MOTION CAN NOT BE RAISED FOR THE FIRST TIME IN REPLY PAPERS, COURT SHOULD NOT HAVE CONSIDERED THE MOTION (FOURTH DEPT))/CPLR 3212  (REPLY PAPERS, GOOD CAUSE FOR DELAY IN FILING A DISPOSITIVE MOTION CAN NOT BE RAISED FOR THE FIRST TIME IN REPLY PAPERS, COURT SHOULD NOT HAVE CONSIDERED THE MOTION (FOURTH DEPT))/SUMMARY JUDGMENT (GOOD CAUSE FOR DELAY IN FILING A DISPOSITIVE MOTION CAN NOT BE RAISED FOR THE FIRST TIME IN REPLY PAPERS, COURT SHOULD NOT HAVE CONSIDERED THE MOTION (FOURTH DEPT)

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