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A MOTION FOR SUMMARY JUDGMENT MAY BE MADE ANYTIME AFTER ISSUE IS JOINED; A JUDGE CANNOT REQUIRE THE FILING OF A NOTE OF ISSUE BEFORE A SUMMARY JUDGMENT MOTION CAN BE MADE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the judge should have have denied plaintiff’s motion for summary judgment in this rear-end collision case on the ground a note of issue had not been filed:

“CPLR 3212(a) provides that any party may move for summary judgment once issue has been joined. The court may ‘set a date after which no such motion may be made’ which must be at least 30 days after the filing of a note of issue (CPLR 3212[a]). The court has no authority to require the filing of a note of issue as a prerequisite to a motion for summary judgment, since CPLR 3212(a) clearly states that a motion for summary judgment may be made once issue has been joined” … . . Accordingly, the Supreme Court should not have denied Karen Jackson’s motion on that ground. Jackson v Islam, 2025 NY Slip Op 00438, Second Dept 1-29-25

Practice Point: A motion fore summary judgment can be made anytime after issue is joined. A judge cannot require that a note of issue be filed first.

 

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