The right to move for summary judgment is an important procedural right provided by CPLR §3212. Summary judgment promotes quick and simple resolution of cases lacking in merit and furthers judicial economy in the process. In New York, where the affidavit of merit requirement is essentially a toothless instrument and where frivolous claims against peripheral defendants are not weeded out via expert depositions, the right to make a motion for summary judgment may be the only way a defendant can address a meritless claim.

Under some of the trial calendar systems employed by trial courts in New York State, the statutory right to a summary judgment motion is occasionally limited. While some counties permit the filing of motions for summary judgment up to 120 days after the Note of Issue (Bronx and Suffolk), others (Queens, Nassau, Kings and Westchester) require motions to be submitted within 60 or 90 days. This 60- or 90-day rule is sometimes coupled with a calendar practice requiring that the Note of Issue be filed by a date certain regardless of the status of discovery or, in the alternative, discovery deadlines are extended without changing the date to file the Note of Issue and discovery continues after the Note of Issue has been filed. In such a circumstance, the defendant’s ability to move for summary judgment may be compromised.

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