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Current Developments in the Commercial Divisions of the
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Posted: June 28, 2014

Court Should Have Decided Motion for Summary Judgment Even Though Filed More Than 120 days After the Note of Issue

On June 25, 2014, the Second Department issued a decision in Shao v. Cao, 2014 NY Slip Op. 04733, requiring a trial court to hear a dispositive motion even though it was filed more than 120 days after the Note of Issue was filed.

In Shao, the Second Department reversed a trial court decision denying a motion for summary judgment because it was untimely. One defendant, the Second Department found, timely filed on the 120th day after filing the Note of Issue. As to the other defendants, it ruled:

[A]lthough that branch of the motion of the defendants Wei’s Realty Corp., Perfect Funding Corp., and NYC Funding Center, Inc. (hereinafter collectively the corporate defendants), which was for summary judgment dismissing the complaint insofar as asserted against them was untimely, it was made on nearly identical grounds as Cao’s timely motion for summary judgment. Under the circumstances, the Supreme Court should have determined that good cause existed to review the untimely motion for summary judgment on the merits.

(Internal quotations and citations omitted) (emphasis added).

This decision shows that, at least occasionally, the 120-day deadline for making a dispostive motion is not enforced as strictly as the rules for filing a Notice of Appeal. Still, better not to count on a sympathetic court in this regard.

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