Outside Counsel

Because it is a Friday afternoon, here is a rare, law related post, just to show that I really do practice. The rule in New York is that a party has up to 120 days from the filing of the Note of Issue and Statement of Readiness for Trial to make a motion for summary judgment. (The court can set a shorter date-- minimum 30 days.) The Note of Issue signals that discovery is completed-- you wouldn't usually make such a motion until the close of discovery, since the argument "I need discovery" will almost always prevail. After that, a party that wishes to make a summary judgment motion is out of luck, "except for good cause shown". Bouilland v. Angulo (2004 WL 2941569) contains a handy catalogue of what "good cause" arguments have worked. Good cause has been shown to exist where: (1) relevant discovery requests or depositions were outstanding, for example, depositions of two key fact witnesses,or independent medical examinations of plaintiff; (2) the final deposition transcripts upon which the movant intended to rely had not yet been returned;(3) the movant's attorney was experiencing a family emergency; (4) the court expressly requested that the motion be made at a later date; and (5) the motion was premised on an appellate determination on a potentially determinative issue on a prior appeal that could not have been raised in a timely fashion.

You'd think it would be a fairly simple thing, but it is really not so cut and dried. A complicating consideration is that, although the option of bringing a motion to strike the note of issue when discovery is not complete should obviate the "good cause" requirement, I have never seen such a motion granted during the time that I have been practicing here in the Queen City of the Lakes. The practice in these parts is to keep the case on the calendar, but direct that the discovery sought be completed or exchanged. I guess in such an instance good cause #4 should be part of the court's order. I have yet to see such an order. I suppose it is no big deal, except that this seems like a very rigid system, and I like a little give in my civil proceedure. It is the difference between the CPLR and the Federal Rules-- the one is iron bound, and the other is almost cuddly.

We now return to our usual frivolity.