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“GOOD CAUSE” FOR FILING A LATE SUMMARY JUDGMENT MOTION MUST BE DEMONSTRATED IN THE INITIAL MOTION PAPERS, NOT IN THE REPLY PAPERS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the defendant’s late summary judgment motion should not have been granted because the initial papers  did not demonstrate “good cause” for the late filing. The “good cause” allegations in defendant’s reply papers should not have been considered:

Defendant’s motion was … untimely … and, thus, defendant was required to demonstrate “good cause” for the untimeliness of the motion in its initial motion papers (CPLR 3212 [a] …). Indeed, “[i]t 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” … . Inasmuch as it is undisputed here that defendant did not proffer any good cause for the delay in its initial motion papers, the court erred in considering the motion and should have denied it as untimely … . Worden v City of Utica, 2024 NY Slip Op 02628, Fourth Dept 5-10-24

Practice Point: If you make a late summary judgment motion, you must demonstrate “good cause” for being late in the initial motion papers. A “good cause” demonstration in the reply papers should not be considered by the judge.

 

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