New York summary judgment: the note of issue starts the clock, and 120 days ends it

New York anchors summary judgment to a filing rather than to a discovery cutoff or a hearing date. The filing is the note of issue, and everything else counts from it.

The window

CPLR 3212(a):

Any party may move for summary judgment in any action, after issue has been joined; provided however, that the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown.

Three separate constraints:

A floor. The motion can't be made until issue has been joined — meaning an answer has been served. A motion for summary judgment before the answer is premature under the rule.

A court-set ceiling, if there is one. The court may set a cutoff, but it can't be earlier than 30 days after the note of issue is filed.

A default ceiling. Absent a court-set date, 120 days after the note of issue.

Many courts and individual parts do set a shorter period — 60 days is common in some parts — so the 120 days is the fallback, not the expectation. The scheduling order or the part rules control where they speak.

"Good cause shown" is about the delay

A motion after the deadline requires leave of court on good cause shown. New York's Court of Appeals has read that phrase strictly: good cause means a satisfactory explanation for the lateness of the motion itself, not the merit of the motion. A meritorious late motion without an explanation for being late does not satisfy the standard. That interpretation comes from case law rather than from the text of CPLR 3212(a).

The practical consequence is that the 120 days functions much more like a hard deadline than the "except with leave" language suggests.

The motion's own briefing schedule

CPLR 3212 doesn't contain its own notice periods. Those come from CPLR 2214(b), which governs motions generally:

A notice of motion and supporting affidavits shall be served at least eight days before the time at which the motion is noticed to be heard. Answering affidavits shall be served at least two days before such time. Answering affidavits and any notice of cross-motion, with supporting papers, if any, shall be served at least seven days before such time if a notice of motion served at least sixteen days before such time so demands; whereupon any reply or responding affidavits shall be served at least one day before such time.

That last sentence describes the mechanism practitioners rely on. A movant who serves the notice of motion at least 16 days before the return date, and demands answering papers seven days out, buys a reply — otherwise the rule gives the movant no reply at all.

So a New York summary-judgment schedule is built, not given: 8/2 by default, or 16/7/1 if the movant serves early and makes the demand.

CPLR 2103(b) supplies the service add-ons for papers in a pending action — including five days for service by mail and one day for overnight delivery — which extend those periods when the papers go out that way.

What the papers have to contain

CPLR 3212(b): the motion "shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions." The affidavit must be by a person having knowledge of the facts, must recite all the material facts, and must show that there is no defense to the cause of action or that the cause of action or defense has no merit.

A copy of the pleadings is a requirement of the rule, not a courtesy.

On expert proof, CPLR 3212(b) adds: where an expert affidavit is submitted in support of or in opposition to the motion, "the court shall not decline to consider the affidavit because an expert exchange pursuant to [CPLR 3101(d)(1)(i)] was not furnished prior to the submission of the affidavit."

The standard, and who can win

CPLR 3212(b): the motion "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." Except as CPLR 3212(c) provides, "the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact."

And a provision with no federal analogue in the same form: "If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion."

Moving for summary judgment in New York exposes the movant to judgment against them, on the same papers, without the other side having moved.

Related provisions worth knowing

Immediate trial. CPLR 3212(c): where the only triable issues of fact arising on the motion relate to the amount or extent of damages, or in the specific situations the subdivision lists, the court may order an immediate trial of those issues.

Facts unavailable. CPLR 3212(f): where it appears from affidavits submitted in opposition that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion or order a continuance to permit affidavits to be obtained or disclosure to be had.

Partial relief. CPLR 3212(g): where the motion is denied or granted in part, the court may specify which facts are not in dispute or are incontrovertible, and those facts are deemed established for all purposes in the action.

Counting it out

Where these rules live

• CPLR 2103 — Service of Papers
• CPLR 2214 — Motion Papers; Service; Time
• CPLR 3211 — Motion to Dismiss
• CPLR 3212 — Motion for Summary Judgment
• CPLR 3402 — Note of Issue

Individual parts and courts publish their own rules, which frequently shorten the 120 days. This page explains what the CPLR says. It isn't legal advice.