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William C. Altreuter
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Thursday, July 29, 2004

I've been thinking about Brill v. City of New York, and CPLR 3212(a), and I am a bit put out about both. 3212(a) pertains to the time within which summary judgment motions may be made. Such a motion can be made no earlier than at joinder of issue, and no later than 120 days after the filing of the note of issue. The outside date is new since 1997, and for a while some courts were reading the statute as though they could, in the exercise of discretion, allow late summary judgment motions. In Brill the Court of Appeals has weighed in and said, "No." The standard to be applied is whether the movant can show a satisfactory reason for the delay.

The effect of this is paradoxical. On the one hand, "good cause" is a matter of law, which can be easier to demonstrate on appeal than an abuse of discretion. On the other hand, what about a case that is plainly lacking merit as a matter of law? Under Brill, if the movant cannot demonstrate good cause for the delay in making timely application, the matter proceeds to trial-- a waste of everyone's time. In his dissent Judge G.B. Smith runs it down: "because the time of the litigants, jurors, lawyers, the judge, and other court personnel should not be wasted in going through the motions of a trial which has no merit and must be dismissed, I dissent." As Judge Smith observes, the good cause shown for allowing the motion notwithstanding the lateness of the application was the merits of the action.

I'm thinking that this is a statute that ought to be revisited.

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