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Commercial Division Blog

Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: July 9, 2020

Cross-Motion for Summary Judgment Made After Statutory Deadline Rejected

On May 11, 2020, Justice Livote of the Queens County Commercial Division issued a decision in WDF Inc. v. Andron Constr. Corp., 2020 NY Slip Op. 31980(U), rejecting a cross-motion for summary judgment made after the statutory deadline for filing, explaining:

[T]he branch of the cross motion for summary judgment dismissing the seventh cause of action is time barred. The plaintiff argues that it should be considered on the ground that the parties stipulated to an extension of time. This argument is without merit. First, the stipulation only extended the time for Andron to respond to the motion made by the plaintiff it did not extend the time to make a cross motion. Furthermore, even if the stipulation could be read as an attempt by the parties to extend the time to make a cross motion this stipulation was not so ordered. The parties cannot on their own extend a statutory deadline to make a summary judgment motion. Additionally, the stipulation was not entered into until after the deadline to make a summary judgment motion had expired.

Finally, even if the court accepts the defendant’s reliance on the stipulation as the reason it did not seek leave court to make a late summary judgment motion, the defendant has failed to show good cause for making a late summary judgment motion. The argument that because the plaintiff made its summary judgment motion on the day the deadline to make summary judgment motion deprives it of an opportunity to seek summary judgment in a cross motion is devoid of merit. Nothing precluded the defendant from moving for summary judgment on its own rather than waiting to file a cross motion in response to the plaintiff’s motion. The fact that the defendant chose not to make a motion on its own, but instead to make a cross motion is not good cause for the lateness of seeking summary judgment.

(Internal quotations and citations omitted).

New York procedural law (including the special rules applying to litigation in the Commercial Division of the New York courts) is not particularly complex. Still, there are special procedural requirements, such as the time limits for moving for summary judgment. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions regarding New York practice, and particularly regarding the rules governing practice in the Commercial Division.

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