New York Appellate Division Reminds New York Practitioners That They Ignore CPLR 3212(a)’s Filing Deadlines at Their Peril

In Kershaw v. Hospital for Special Surgery, the First Department of New York’s Appellate Division affirmed the denial of a summary judgment motion for being untimely filed, notwithstanding that the tardy motion clearly had merit, as emphasized by the dissent. In so doing, the Kershaw Court reinforced the notion that attorneys who disregard the filing deadlines set forth by the New York courts under the New York Civil Practice Law and Rules (“CPLR”) do so at their own peril.

In Kershaw, the plaintiff was an individual who sought surgical treatment from Defendants Hospital for Special Surgery (“HSS”) and New York University Medical Center Hospital for Joint Diseases (“HJD”). Both HSS and HJD refused after determining that surgery was not in Plaintiff Kershaw’s best interests. In spite of HSS and HJD’s refusals, Plaintiff subsequently underwent a two-stage cervical spine surgery at a third medical facility. Plaintiff thereafter filed suit against HSS and HJD, alleging that Defendants’ refusals to perform surgery upon him in a timely manner caused neurological and muscular damages that would not have otherwise occurred. On August 24, 2011, a note of issue — which made the trial court aware that discovery was complete and the matter was ready to be tried — was filed.

CPLR 3212(a) mandates that summary judgment motions in New York state court be brought within 120 days of the filing of the note of issue or else within the time established by the court. Consistent with CPLR 3212(a), the trial court in Kershaw set a November 14, 2011 deadline for the filing of summary judgment motions. HJD filed its motion on November 11, 2011, which the trial court granted after ruling that Plaintiff failed to demonstrate any injury sustained as a result of the delay in surgery. HSS, on the other hand, did not file its motion — which relied on the factual proofs presented by HJD in its November 11, 2011 motion — until January 10, 2012, and, importantly, failed to provide any explanation for the nearly two-month delay. As a result, the trial court denied HSS’s motion as untimely, despite the motion’s obvious merits.
The Appellate Division affirmed, noting that HSS offered no reasonable excuse for the delay and that the trial court properly ruled that HSS’s motion raised sufficiently divergent factual issues from the ones raised in HJD’s motion. The Court also noted that in spite of the sometimes contrary case law in which New York courts have considered the merits of untimely filed “cross-motions” which piggyback on the issues addressed in timely filed motions, the deadlines set forth in accordance with CPLR 3212(a) are clear and must be followed to curb sloppy litigation practices and to foster respect for court orders and statutory mandates.

Although CPLR 3212 has been around for some time, many practitioners are unaware of it or wrongly assume its deadlines will not be strictly enforced. Kershaw provides a note of caution to practitioners in New York that ignoring those filing deadlines can have serious consequences for their clients.

 Calvin K. May, an Associate in the Gibbons Business & Commercial Litigation Department, co-authored this post.
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