In New York Supreme Court, a CPLR 3212 summary judgment motion must be made within 120 days after the note of issue is filed, unless the court sets its own date (no earlier than 30 days after the note of issue). Miss it and you need leave of court on good cause, which the Court of Appeals reads strictly. Most of what follows is about that clock and what happens when you are on the wrong side of it.
The CPLR 3212 summary judgment deadline
CPLR 3212(a) allows any party to move for summary judgment after issue has been joined. The court may set a date by which the motion must be made, "no earlier than thirty days after the filing of the note of issue." If it sets none, the motion must be made "no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown."
| Situation | Deadline | If you miss it |
|---|---|---|
| Court has set no date | 120 days after the note of issue is filed | Leave of court on good cause shown |
| Court has set a date | The date in the order, but not earlier than 30 days after the note of issue | Leave of court; the order controls, so read it first |
| Issue not yet joined | Motion not available yet | Wait until issue is joined |
Three practical points.
Find the court-set date before you count to 120. Preliminary conference orders and individual part rules in many courts set a shorter date. If the order says 60 days, your deadline is 60 days, not 120. Lawyers who calendar the New York summary judgment deadline from the statute alone get caught here.
The clock starts at filing, not when you receive anything. The trigger is the filing of the note of issue. If your adversary files it, calendar the date the day the e-filing notice arrives. Counting is its own subject. Our guide to calculating court deadlines covers the general approach; confirm the computation rules that govern a New York state-court period before you rely on a last-day filing.
A cross-motion is not a safe harbor. Do not assume that an adversary's timely motion lets you file your own late. Whether and when a cross-motion is treated as timely is a question to confirm in your department's case law before you rely on it.
Brill: good cause means an explanation for the delay
The controlling case is Brill v. City of New York, 2 N.Y.3d 648 (2004). The Court of Appeals held that "good cause" in CPLR 3212(a) requires a showing of good cause for the delay in making the motion, "a satisfactory explanation for the untimeliness," and not merely a meritorious motion. The court rejected the view that the statute simply permits "meritorious, nonprejudicial filings, however tardy."
Read that last phrase as the rule. Under Brill, the strength of your motion is not the question. The question is why you were late.
What this means for a motion for leave:
- Put the explanation in an affidavit. Say what happened and when. Dates and names, not adjectives.
- Do not lead with the merits. The court will reach them only after you have explained the delay. Lead with the merits and you have answered the wrong question.
- Lack of prejudice is not an explanation. That is the point of the "nonprejudicial filings, however tardy" language. A calendaring slip is a common explanation, and an opponent will attack it as law office failure. Do not assume the court will accept it; check the current cases in your department.
- Assume the same standard applies to a court-set date. Brill itself construed the 120-day clause. A few months later, in Miceli v. State Farm Mutual Automobile Insurance Co., 3 N.Y.3d 725 (2004), the Court of Appeals said that statutory time frames, "like court-ordered time frames," are "not options, they are requirements." Expect to be held to a shorter date set by order, but confirm the standard with a decision from your own department before you argue the point either way.
If you oppose a late motion, the same cases are your best argument. Raise untimeliness in your opposition papers, not at oral argument. Our guide to opposing summary judgment covers the rest of the opposition.
The burden shift: Alvarez, Winegrad and Zuckerman
New York's burden framework comes from three Court of Appeals decisions that turn up in most motion papers.
In Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986), the court stated that "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact." Once that showing is made, "the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact."
Winegrad v. New York University Medical Center, 64 N.Y.2d 851 (1985), enforces the movant's half, which movants tend to forget: failure to make the prima facie showing "requires denial of the motion." The court described the movants' "bare conclusory assertions" as insufficient to show that the cause of action had no merit. A thin motion can fail even when the opposition is thin too.
Zuckerman v. City of New York, 49 N.Y.2d 557 (1980), supplies the opponent's side: "mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient." The opposing party in Zuckerman tendered no evidentiary proof in admissible form, offered no excuse for the omission and did not ask for an adjournment to obtain it. The statutory tool for an opponent in that position is CPLR 3212(f), below.
The federal standard is phrased differently, though the two overlap heavily. Our summary judgment standard post covers the federal Rule 56 framework.
What goes in the 3212(b) papers
CPLR 3212(b) requires the motion to be supported by an affidavit, a copy of the pleadings, and other available proof, "such as depositions and written admissions." The affidavit must be by a person with knowledge of the facts and must "recite all the material facts." The motion is granted if, on all the papers and proof, the cause of action or defense is "established sufficiently to warrant the court as a matter of law" in directing judgment.
A working list for the movant:
- Pleadings. Attach the complaint and answer, not summaries of them.
- Affidavit from a person with knowledge. An attorney's affirmation that recites facts from the file, without personal knowledge, is the classic defect. Use it to attach exhibits, and put the facts in a witness's affidavit.
- Deposition transcripts and documents in admissible form. Authenticate what you attach.
- Expert proof. The statute says the court "shall not decline to consider" an expert affidavit offered in support of or opposition to the motion because no CPLR 3101(d) expert exchange was furnished before the affidavit was submitted. That does not make a weak affidavit persuasive, but a court may not refuse it on that ground alone.
Under 3212(e), summary judgment may also be granted on one or more causes of action, or part of one, to the extent warranted. And under 3212(g), if the motion is denied or granted only in part, the court is, if practicable, to determine what facts are not in dispute or are incontrovertible and say so in its order; those facts are then deemed established for all purposes in the action. If the motion fails, ask for that order. It narrows the trial.
CPLR 3212(f): facts the other side controls
Opponents sometimes lack facts because the movant holds them. CPLR 3212(f) addresses this. When the opposing affidavits show that facts essential to justify opposition may exist but cannot then be stated, "the court may deny the motion or may order a continuance to permit affidavits to be obtained or disclosure to be had."
Use it with specifics. Name the discovery you need, why it is in the movant's hands, and what you expect it to show. A general plea that discovery is incomplete risks being treated as the kind of "expressions of hope" Zuckerman held insufficient. If a certificate of readiness was filed with the note of issue, expect the movant to point to it, so raise the discovery gap early and explain it.
The statement of material facts: 22 NYCRR 202.8-g
Many online summaries still describe 22 NYCRR 202.8-g as mandatory. In its last form, the rule let the court direct a separate, short and concise statement of material facts in numbered paragraphs, with a numbered response, and uncontroverted facts could be deemed admitted. It was adopted effective February 1, 2021, amended in July and August 2022, and Cornell's Legal Information Institute lists it as repealed effective July 7, 2025, citing the New York State Register of May 28, 2025.
LII is not the official source, so confirm the repeal against the Unified Court System's Part 202 rules before you rely on it. Individual judges' part rules, and the Commercial Division rules (Rule 19-a lets the court direct a statement of material facts), may still ask for one. Read the assigned judge's rules before you file or oppose.
Federal contrast: Rule 56
In federal court, Rule 56(b) provides that "a party may file a motion for summary judgment at any time until 30 days after the close of all discovery," unless a local rule or court order sets a different time. The deadline attaches to discovery, not to a note of issue. Rule 56(d) is the counterpart to CPLR 3212(f). Response times come from local rules and scheduling orders; Rule 56 itself sets no fixed response period.
Frequently asked questions
What is the deadline for a summary judgment motion in New York?
Under CPLR 3212(a), unless the court has set a date, a summary judgment motion must be made within 120 days after the note of issue is filed. A court may set its own date, but not earlier than 30 days after the note of issue. After the deadline, you need leave of court on good cause shown.
What counts as good cause for a late summary judgment motion?
In Brill v. City of New York, 2 N.Y.3d 648 (2004), the Court of Appeals held that good cause requires a satisfactory explanation for the untimeliness, not just a meritorious motion. A strong merits argument alone does not excuse the delay. Explain, with facts, why the motion could not be made on time.
Can the court consider an expert affidavit if no CPLR 3101(d) exchange was made?
Yes. CPLR 3212(b) says that where an expert affidavit is submitted in support of or opposition to a summary judgment motion, the court shall not decline to consider it because no expert exchange under CPLR 3101(d) was furnished before the affidavit was submitted. The court may still weigh whether the affidavit is competent and persuasive.
What does CPLR 3212(f) do?
CPLR 3212(f) lets the opponent show by affidavit that facts essential to justify opposition may exist but cannot then be stated. The court may then deny the motion or order a continuance so affidavits can be obtained or disclosure had. It fits facts in the movant's control, such as documents or witnesses not yet produced.
Is a statement of material facts still required in New York state court?
Not under 22 NYCRR 202.8-g. Cornell's Legal Information Institute lists that rule as repealed effective July 7, 2025. Individual part rules may still ask for one, and Commercial Division Rule 19-a lets the court direct one, so check the assigned judge's rules before filing.
Before you file
Summary judgment papers rest on a handful of cases, and the court reads each one against your description of it. If a draft came partly from a general-purpose AI tool, run it through the Hallucination Shield first. It is free, needs no signup, and checks up to 50 citations per run, flagging any it cannot verify. It will not tell you whether you described a holding correctly, so read Brill and Alvarez yourself. Our guides to verifying AI-generated citations and cite-checking a brief cover the rest of that process.
In CaseRead, each matter workspace has a deadlines panel, so the note-of-issue date and any court-set date sit with the rest of the file. Count and confirm those dates yourself.
This article is for general information and is not legal advice. For guidance on a specific case, consult a licensed attorney in your jurisdiction.