BILL NUMBER:S4595

TITLE OF BILL:

An act
to amend the civil practice law and rules, in relation to the time for
the making of a motion to dismiss for failure to state a cause of action
and motion for summary judgment

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her
Advisory Committee on Civil Practice.

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]