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THE LATE SUMMARY JUDGMENT MOTION AND THE EXCUSE OFFERED IN REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the late summary judgment motion and an excuse offered in reply papers should not have been considered:

Pursuant to CPLR 3212, courts have “considerable discretion to fix a deadline for filing summary judgment motions,” so long as the deadline is not “earlier than 30 days after filing the note of issue or (unless set by the court) later than 120 days after the filing of the note of issue, except with leave of court on good cause shown” … . As a general matter, a court should not consider a good cause argument proffered by a movant if it is presented for the first time in reply papers … . Here, it is undisputed that the defendant moved for summary judgment approximately 30 days after the date set by the Supreme Court without seeking leave of the court or offering an explanation showing good cause for the delay in their moving papers. As a result, the court improvidently exercised its discretion in considering that branch of the defendant’s motion which was for summary judgment dismissing the complaint insofar as asserted against it and in considering the good cause arguments raised for the first time in the defendant’s reply papers … . O’Neil v Environmental Prods. Corp., 2020 NY Slip Op 05516, Second Dept 10-7-20

 

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