The Court of Appeals recently held a summary judgment motion made 62 days after the filing of the note of issue “timely” under the amended local rules. In Crawford v. Liz Claiborne, Inc., 20008 N.Y. Slip Op. 7989 (2008), an employment discrimination action, the IAS Judge issued a preliminary conference order (“PCO”) directing that all dispositive motions be made “per local rule.” At the time the PCO was issued, local rules provided that all motions for summary judgment were to be made no later than 60 days after the filing of the note of issue, and the IAS Judge had no individual part rule on the subject.
Before the note of issue was filed in the action, the local rules were amended to provide that summary judgment motions were to be made no later than 120 days after the filing of the note of issue and the IAS Judge’s individual rules were modified to require such post note of issue motions to be made within 60 days thereof. The defendant moved for summary judgment 62 days after the filing of the note of issue and the plaintiff then moved to strike the motion as untimely. The IAS Judge found that while the defendant’s motion was untimely, the defendants showed “good cause” for the delay. The plaintiff’s failed to oppose the motion on the merits, therefore defendant’s motion for summary judgment was granted. The Appellate Division, relying on Brill v. City of New York, 2 N.Y.3d 648 (2004), reversed.
The Court of Appeals held that the Brill did not apply to this case and the defendant’s motion was timely because, at the time the PCO was issued, there was no applicable individual part rule therefore “per local rule” referred to the Local Rules of Supreme Court, New York County. When the note of issue was filed, the 120-day amended local rule was in effect, therefore the defendant’s motion 62 days after the filing of the note of issue was timely under the amended local rule.
Marissa A. Coheley