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PLAINTIFF DID NOT SATISFACTORILY EXPLAIN THE DELAY IN BRINGING THE UNTIMELY CROSS-MOTION FOR SUMMARY JUDGMENT; THEREFORE SUPREME COURT SHOULD NOT HAVE CONSIDERED THE MERITS OF THE MOTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s untimely cross-motion for summary judgment should not have been granted because the delay in making the cross-motion was not satisfactorily explained:

Pursuant to CPLR 3212(a), 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” … . Absent a “satisfactory explanation for the untimeliness,” constituting good cause for the delay, an untimely summary judgment motion must be denied without consideration of the merits … . However, an untimely cross motion for summary judgment may nevertheless be considered by the court “where a timely motion was made on nearly identical grounds” … .

… Supreme Court erred in considering the plaintiff’s untimely cross motion. The cross motion was made months after the deadline imposed by the court had elapsed, and the plaintiff offered no explanation for the delay. Contrary to the plaintiff’s contention, his cross motion did not raise nearly identical issues as [defendant’s] timely motion, which had a different factual basis and addressed substantively different violations of the Industrial Code … . Dojce v 1302 Realty Co., LLC, 2021 NY Slip Op 05950, Second Dept 11-3-21

 

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