Brill and the 60-Day Rule: Local Court Deadlines for Summary Judgment Motions

Key Takeaways

• In Michael Palmeri, M.D., PLLC v Allstate Ins. Co., the Appellate Term affirmed denial of a summary judgment motion made more than 60 days after the notice of trial, enforcing Part 41’s rule.
• CPLR 3212(a) gives parties up to 120 days after the note of issue — but it also lets courts set an earlier cutoff, the hook for local “abbreviated Brill” rules.
• The movant offered no explanation for the delay, so the court never reached a good-cause analysis.
• The Part 41 rule was never published or set out in a compliance conference order, raising genuine notice and due process concerns.
• Check the individual part rules the moment a notice of trial is filed, and build a good-cause record for any late motion.

In no-fault insurance litigation, timing requirements for motions can make or break a case. A recent decision highlights an important procedural issue: when courts apply unpublished local rules to limit parties’ rights under established civil procedure law. This case demonstrates how local court practices can supersede broader procedural rights, even when those practices lack formal publication or clear legal authority.

The tension between local court rules and established civil procedure becomes particularly complex when dealing with summary judgment timing requirements. While the CPLR provides clear guidelines for when parties can seek summary judgment, local court parts may impose additional restrictions that can catch practitioners off guard.

The Decision

Jason Tenenbaum’s Analysis:

Michael Palmeri, M.D., PLLC v Allstate Ins. Co., 2015 NY Slip Op 51130(U)(App. Term 2d Dept. 2015)

“Defendant failed to make its motion within 60 days of the filing of the notice of trial, as required by the rules of Part 41 of the Civil Court, and failed to offer any explanation in the Civil Court for the untimeliness of its motion. Accordingly, the Civil Court properly denied defendant’s motion as untimely”

How can a rule that was never published in the law journal or set forth in a compliance conference order have precedential effect? This is especially the case when you are limiting a party’s right to exercise a right it enjoys under the CPLR?

The Legal Framework: CPLR 3212(a) and Brill

CPLR 3212(a) sets the outer boundary for summary judgment practice in New York. The statute permits the court to “set a date after which no such motion may be made,” so long as that date is no earlier than 30 days after the filing of the note of issue. If the court sets no date, the default applies: the motion must be made no later than 120 days after the note of issue is filed, “except with leave of court on good cause shown.”

In Brill v City of New York, 2 NY3d 648 (2004), the Court of Appeals put teeth into that deadline. “Good cause” means a satisfactory explanation for the delay in making the motion — the merits of the motion, however strong, do not excuse lateness. A meritorious but untimely motion dies on arrival unless the movant can explain why it was late.

In the Civil Court of the City of New York, where the bulk of no-fault first-party litigation is venued, the notice of trial is the functional equivalent of the note of issue. The 3212(a) clock therefore runs from the filing of the notice of trial. What Palmeri adds is a reminder that an individual part — here, Part 41 — can compress the default 120-day window to 60 days, and the Appellate Term will enforce the shorter period.

The Problem With Unpublished Part Rules

The statutory authority for an abbreviated deadline is real: CPLR 3212(a) expressly contemplates that a court may “set a date.” The fair-notice problem is equally real. Uniform court rules are codified in Title 22 of the NYCRR and are publicly available. Part rules, by contrast, sometimes exist only as posted notices, courtroom practice, or institutional memory. When a 60-day rule is not published, not recited in a compliance conference order, and not communicated to the parties, a litigant who relies on the CPLR’s 120-day default is ambushed.

This decision raises fundamental due process concerns about unpublished local rules that restrict procedural rights. Enforcing timing requirements never formally published or properly promulgated creates uncertainty for practitioners and potentially impairs parties’ rights to timely motion practice under the CPLR.

Note, however, what doomed the defendant here: it “failed to offer any explanation” for the delay. Had counsel made a record — for example, that the part rule was unpublished and unknown to the movant — the good-cause analysis might have come out differently. Silence forfeited the argument.

Why This Matters in No-Fault Practice

For carriers, the summary judgment motion is the primary vehicle for IME no-show, EUO, mailing, and medical necessity defenses. A blown deadline does not extinguish the defense, but it pushes the case to trial, with all the cost and unpredictability that entails. For medical providers, the same deadline governs motions to establish a prima facie case of claim submission and nonpayment.

In a volume practice where notices of trial are filed by the hundreds, a 60-day part rule cuts the working window in half — often the difference between a motion decided on the merits and one denied at the threshold.

Practice Pointers

• Diary two dates the moment a notice of trial is served: the 60-day mark and the 120-day mark. Treat the earlier one as the real deadline until confirmed otherwise.
• Check the assigned part’s rules immediately. Call the part clerk if nothing is posted; confirm in writing where possible.
• If you are late, explain why. An affirmation documenting the absence of any published rule is far better than silence.
• Preserve the objection. If the rule was never published or embodied in an order, say so on the record — that is the argument Palmeri leaves open for a better-developed appeal.

Frequently Asked Questions

How long do you have to move for summary judgment in New York?

Under CPLR 3212(a), no later than 120 days after the note of issue is filed, unless the court sets an earlier date. In Civil Court no-fault cases, the notice of trial starts the clock, and some parts shorten the window to 60 days.

Can a court require summary judgment motions within 60 days?

Yes. CPLR 3212(a) authorizes deadlines earlier than the 120-day default, and appellate courts have enforced 60-day part rules — though whether an unpublished, uncommunicated rule should carry that effect remains a fair question.

What happens if a summary judgment motion is filed late?

It will be denied as untimely unless the movant shows “good cause” — a satisfactory explanation for the delay itself. Under Brill, the strength of the motion’s merits is irrelevant.

Related Resources

• CPLR 3212(a), Critical Timing Rules for Summary Judgment Motions in New York
• CPLR 3212(a) not applicable in the lower courts? Not again.
• Avoiding the 120-day rule to make a summary judgment motion
• A formulation of a prima facie case in no-fault litigation
• The firm’s Legal Encyclopedia
• No-Fault Defense practice