Relates to the time for making a motion to dismiss for failure to state a cause of action and motion for summary judgment

A motion to dismiss, authorized by CPLR rule 3211, and a motion for summary judgment, authorized by rule 3212, are two of the most important mechanisms in civil practice for resolving those cases where a trial is not necessary or for narrowing the issues that need to be tried. They are intended to serve the important purpose of avoiding unnecessary trials, thereby benefitting both the litigants and the courts. By chapter 492 of the Laws of 1996, the Legislature amended CPLR 3212(a) to provide that a motion for summary judgment shall be made within the time set by the court or, if no such time is set, "no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown." The purpose of this amendment was to prevent the late filing of motions for summary judgment, often made on the eve of trial . and resulting in a delay of the scheduled trial. By chapter 616 of the Laws of 2005, the Legislature enacted an amendment to 3211 (e) to eliminate highly technical provisions that could serve as a trap for a party responding to certain motions to dismiss, causing that party to lose his or her right to replead if the motion was granted.

In recent years, several court decisions, as well as the practices of some judges and courts, have demonstrated that further statutory reform, addressing problems unforeseen at the time the amendments were made, is needed to insure that motion practice does not produce unnecessary trial delays. Motion practice has been subject to abuse; some motions are being initiated for the sole purpose of seeking delay, often just prior to trial. This measure would supply the needed reform.

First, as a threshold matter, this measure addresses a motion to replead or amend under CPLR 3211(e) to respond to the recent opinion of the Second Department in Janssen v. Incorporated Village of Rockville Ctr., 59 A.D.3d 15, in which the Court considered some of the questions left open by the 2005 amendment. The court concluded its opinion by saying, "We urge the Legislature to act without delay in addressing the matters and concerns raised herein." This measure would amend rule 3211(e) to make clear that a motion to replead or amend is not barred by the granting of a motion to dismiss for failure to state a cause of action unless the court orders otherwise. This language fills the void noted by the Second Department in that the 2005 amendment left no specific statutory authorization for a motion to replead or amend.

This measure intentionally does not include a specific time limit for making a motion to replead or amend made after dismissal, as we agree with the court that such a motion "should be freely granted absent prejudice or surprise to the opposing party, unless the proposed amendment is devoid of merit or palpably insufficient." The measure thus offers a reasonableness standard applicable to the facts and circumstances presented on a case-by-case basis in the court's discretion. Where the entire complaint is dismissed, there is an end date and the motion there is to vacate the judgment or refile, if the statute of limitations has not run under all available rules.

The remaining proposed amendments relate to timing under under 3211 (e) and 3212. Our Committee advises that practice problems have arisen because no time limitation was imposed on motions to dismiss for failure to state a cause of action authorized by rule 3211(a)(7). In Santana v. City of New York, 6 Misc. 3d 642 (Civ. Ct., N.Y. Co. 2004), the court allowed such a motion after the time permitted for a motion for summary judgment. Currently, rule 3211(e) allows such a motion to dismiss to be made at any time, thereby authorizing motions delaying trials. In this measure, we offer this amendment to rule 3211(e) to impose a time limitation identical to that provided in rule 3212(a). This will preclude a party from making a motion to dismiss for failure to state a cause of action beyond the time a motion for summary judgment can be made. Since a party should be aware of the basis for such a motion at the pleading stage, there would be no prejudice from the timing requirement. The benefit would be eliminating such motions on the "eve of trial."

In Brill v. City of New York, 2 N.Y.3d 648 (2004)) the Court of Appeals considered whether the necessary consequence of the 1996 amendment is that a trial must be held even if there are no disputed issues of fact where a meritorious summary judgment motion is submitted, but after the time permitted. The Court noted the quandary:

"If this practice is tolerated and condoned, the ameliorative statute is, for all intents and purposes, obliterated. If, on the other hand, the statute is applied as written and intended, an anomaly may result, in that a meritorious summary judgment motion may be denied, burdening the litigants and trial calendar with a case that in fact leaves nothing to try."

The Brill majority opted to require a trial, while the dissent would have chosen to permit the motion to be heard. As the Court recognized, neither result is satisfactory. Guided by our Committee, we have, therefore, attempted to develop a procedure that would continue to discourage late summary judgment motions, but not necessarily require a trial where there are no disputed factual issues.

We have modeled our proposal after CPLR 306-b, where the court can excuse the late service of a summons and complaint. The critical new language authorizes a court, in its discretion, to consider a late summary judgment motion for "good cause shown" or "in the interests of justice." {See Mead v. Singleman, 24 A.D.3d 1142 (3d Dept., 2005), for a good description of the differences between the two standards.) This permits the trial court to grant a motion - even a late motion - in order to avoid the time, burden and expense of a

trial where none is needed. At the same time, it will significantly discourage late motions because a party cannot be assured that a court will even consider such a motion. Since the authority given to the trial court is completely discretionary, a party will have no right to have the motion heard if it is made late. We believe that this measure continues the policy that strongly supports an end to dilatory practice while providing an alternative other than the two that the Court of Appeals found unsatisfactory in Brill.

Importantly, this measure clarifies that the 120-day deadline can be varied by "an order made in the action," providing judges with discretion to vary the statutory deadline in particular cases where it is appropriate. This would reverse a recent trend toward the setting of alternative deadlines by local rule or practice, thus avoiding substantial practice confusion and modification of the time period set by the Legislature. This amendment would also make clear that any deadline, whether set by previous court order made in the action or the statutory deadline, could be modified where all parties and the court agree. This language allows the court and the parties flexibility to effectively use summary judgment motions to their benefit without giving rise to abuses or questions as to whether deadlines, however set, can be varied.

This measure would have no fiscal impact on the State. It would take effect immediately and apply to all actions pending on or after such effective date.

2009-10 LEGISLATIVE HISTORY:

OCA 2009-52 Senate 6232 (Sen. Sampson) [Codes]