CPLR § 3212 Summary Judgment: The New York Practitioner's Guide

Last reviewed: June 2026

Key Takeaways

• CPLR § 3212 is New York’s summary judgment statute. Subdivision (a) sets the deadline: no earlier than joinder of issue and — unless the court sets an earlier date — no later than 120 days after the note of issue, absent good cause shown (Brill v City of New York).
• A summary judgment motion is “made” when it is served, not when it is filed. Service by mail is complete upon mailing. Calendar from service.
• Parties cannot stipulate around the 120-day deadline without express court approval, and the deadline applies in the lower courts (Civil, District, City) just as in Supreme Court.
• CPLR 3211(b) motions to strike defenses are not subject to the 3212(a) clock — a powerful (and sometimes abused) workaround.
• CPLR 3212(f) discovery-based denial requires diligence: unexplained delay in pursuing discovery is treated as laches and kills the argument.
• CPLR 3212(g) lets the court deem facts established when full relief is denied, but it cannot be used to shift burdens of proof or resolve genuinely disputed facts.

CPLR § 3212 generates more appellate motion-practice law than almost any other provision of New York’s Civil Practice Law and Rules. This guide consolidates what this office has tracked across 15+ years of case notes: the timing rules of subdivision (a), the proof requirements of subdivision (b), the discovery safety valve of subdivision (f), and the limited-issues device of subdivision (g) — with links to the underlying decisions throughout.

What CPLR § 3212 Says

CPLR 3212 authorizes any party to move for judgment without trial after issue has been joined, on a showing — by admissible proof — that no material facts are genuinely in dispute. The subdivisions practitioners fight over most:

• CPLR 3212(a) — Timing. The motion may be made only after joinder of issue. The court may set a deadline for the motion of no earlier than 30 days after the note of issue; if no date is set, the motion must be made no later than 120 days after the filing of the note of issue, “except with leave of court on good cause shown.” The Court of Appeals in Brill v City of New York construed “good cause” strictly: it means a satisfactory explanation for the delay in making the motion — not that the motion is meritorious or non-prejudicial. Many judges shorten the window to 60 days by part rule, so the operative deadline is often tighter than the statute.
• CPLR 3212(b) — Proof. The motion must be supported by an affidavit of a person with knowledge of the facts, a copy of the pleadings, and other available proof. The motion is granted if the cause of action or defense is established sufficiently to warrant judgment as a matter of law.
• CPLR 3212(f) — Facts unavailable. Where facts essential to justify opposition may exist but cannot then be stated — typically because discovery is outstanding — the court may deny the motion or order a continuance for disclosure.
• CPLR 3212(g) — Limitation of issues. When the motion is denied or granted only in part, the court may specify the facts that appear without substantial controversy and deem them established for trial.

How Courts Apply It

The 120-day clock runs from service, not filing

The single most common 3212(a) dispute is what it means to “make” the motion. The answer is settled: a motion is made when it is served (CPLR 2211), and service by mail is complete upon mailing — a point the Appellate Term reiterated in Metro Psychological Servs., P.C. v American Tr. Ins. Co., covered in our post on CPLR 3212(a)‘s critical timing rules. The First Department said the same thing in the decision that originally prompted this post:

Jason Tenenbaum’s Analysis:

This is a no-brainer but one Plaintiff firm out there emphasizes that the 120 day rule in CPLR 3212(a) applies to when a motion is served. Unsurprisingly, various judges have agreed with this nonsense. This case directly states what all know: the time to file a motion is calculated from when the motion is served.

Mehulic v New York Downtown Hosp., 2017 NY Slip Op 06416 (1st Dept. 2017)

“The motion court properly deemed defendant’s summary judgment motion timely because it was made (that is, served) within 60 days after the filing of the note of issue, as per the court’s directive to the parties (CPLR 2211, 3212; see Corchado v City of New York, 64 AD3d 429 ).”

Note the second lesson buried in Mehulic: the court’s directive shortened the window to 60 days, and the 60-day order — not the statutory 120 — controlled.

The deadline is rigid: calendar strikes, stipulations, and lower courts

The deadline does not bend for procedural detours. In Rivera v City of New York, the First Department held that the 120-day period applies even where the action was marked off the calendar — invoking Brill’s “express prohibition against consideration of unexcused, untimely motions no matter how meritorious or nonprejudicial.”

Nor can counsel contract around it. In Reeps v BMW of N. Am., LLC, the First Department allowed late motions only because the parties had charted a deviating course “with the court’s consent.” As we explained in our post on the court-approval requirement for extending the 120-day deadline, a side stipulation that is never so-ordered does not extend the statutory deadline — get the stipulation so-ordered before the clock runs.

And despite occasional outlier trial-level decisions like Custis v Travelers Prop. Cas. Ins. Co., the Appellate Terms have repeatedly held that CPLR 3212(a) applies in the lower courts — Civil Court, District Court, and City Court alike (Lance Intl., Coello, Khokhlova).

The workarounds: CPLR 3211 motions and conversion

The clock has gaps. The Third Department held in Zarnoch v Luckina that a CPLR 3211(b) motion to strike defenses is not subject to 3212(a)‘s time limits — a party who missed the summary judgment window can still attack an affirmative defense as legally insufficient, though it must succeed on pleading-sufficiency grounds rather than evidence.

The conversion cases cut both ways. In Renelique v State-Wide Ins. Co., the Appellate Term converted a post-joinder 3211(a)(5) motion into a CPLR 3212 motion without notice to the parties. And in Active Chiropractic v Allstate, the same court blessed conversion without notice where the motion presented a purely legal question (res judicata on a prior judgment) — effectively a route for avoiding the 120-day rule when no factual development is needed.

CPLR 3212(b): the proof package

Subdivision (b) requires an affidavit from a person with knowledge, but the Second Department held in Maragos v Sakurai that the omission is not necessarily fatal where the motion is supported by an attorney’s affirmation, deposition testimony, and other admissible proof. The affirmation is a vehicle; the evidence it transmits is what counts.

CPLR 3212(f): discovery as a shield — only for the diligent

Courts enforce a diligence requirement on parties invoking 3212(f). The leading theme is laches: in Stoian v Reed, the Third Department held that a two-year post-deposition delay in a six-year-old action defeated the 3212(f) request as a matter of discretion. The Appellate Term applied the same logic in Williams v New York City Tr. Auth., where three years of discovery inaction was fatal — inaction is acquiescence. Conclusory assertions fail too: in AAA Chiropractic, P.C. v MVAIC, a “bald conclusory assertion” that discovery was needed could not stave off summary judgment, and the Appellate Division has repeatedly held that the opposing party must explain with specificity why it lacks knowledge sufficient to oppose.

The flip side: a movant cannot profit from its own discovery defaults. In IDF Diagnostic Med., P.C. v New York Cent. Mut. Fire Ins. Co., the insurer moved on a peer review it had never produced in discovery, and the motion was denied under 3212(f).

CPLR 3212(g): deeming facts established — and its limits

Subdivision (g) — what Professor Siegel called the remnants of “the aborted motion for summary judgment” — lets a court salvage a denied motion by specifying facts not in substantial controversy. It is a staple of no-fault practice, where a 3212(g) order effectively frames the issues for trial, as in B.Y., M.D., P.C. v GEICO.

But the device has hard limits. In Wave Med. Servs., P.C. v Hertz Vehs., LLC, the Appellate Term reversed an order that used 3212(g) to treat a disputed mailing as established and to shift the burden to the defendant — 3212(g) identifies uncontested facts; it does not reallocate burdens. Quality Med. Healthcare v NY Cent. Mut. likewise found no basis to limit trial issues under 3212(g) where receipt and 31 pleaded defenses remained in play. Once findings are properly made, though, they stick: in EMC Health Prods. v Geico, the defendant failed to articulate any basis to strike 3212(g) findings where its denials admitted receipt of the bills. And TAM Med. Supply Corp. v Travelers shows the orders must be read carefully — a poorly framed order can leave the plaintiff still carrying trial burdens it thought 3212(g) had resolved.

Practice Pointers

1. Calendar from the note of issue — and read the part rules. The statutory outer limit is 120 days, but many parts shorten it to 60 (Mehulic). Calendar both.
2. Serve first, file second. The motion is “made” upon service; mail service is complete on mailing. Keep the affidavit of service airtight — it is your timeliness proof.
3. So-order every extension stipulation. After Reeps, an unapproved stipulation extending the deadline is worthless. Get court consent before the deadline runs.
4. Late motion? Brief the delay, not the merits. Under Brill, good cause means an explanation for the lateness. A meritorious but unexcused late motion will not be heard.
5. Mind the 3211 backdoor — in both directions. A 3211(b) attack on defenses escapes the clock (Zarnoch); a post-joinder 3211(a)(5) motion may be converted to summary judgment without notice when it raises a purely legal question (Renelique; Active Chiropractic).
6. Build the 3212(f) record early. Serve demands promptly, move to compel when ignored, and document the timeline. Courts treat unexplained delay as laches (Stoian; Williams).
7. Treat 3212(g) findings as appellate issues. Scrutinize whether the order resolves genuinely disputed facts or shifts burdens — that is reversible (Wave Med.).
8. Watch opposition deadlines too. Late opposition papers are governed by CPLR 2214’s reasonable-excuse framework — a separate trap covered in our CPLR 2214 guide.

Frequently Asked Questions

When is a summary judgment motion “made” under CPLR 3212(a)?

When it is served, not when it is filed (CPLR 2211). Service by mail is complete upon mailing. So a motion mailed on day 120 after the note of issue is timely even if it reaches the courthouse later — Mehulic v New York Downtown Hosp. and Metro Psychological Servs. both say so expressly.

Can the parties stipulate to extend the 120-day deadline?

Not on their own. After Reeps v BMW of N. Am., the deadline can be extended only with express court approval — a so-ordered stipulation or a scheduling order. A private stipulation between counsel does not bind the court, and the late motion will be measured against Brill’s strict good-cause standard.

Does the CPLR 3212(a) deadline apply in Civil Court and District Court?

Yes. Appellate Term authority (Lance Intl., Coello, Khokhlova) applies the 120-day rule in the lower courts, and outlier trial-level decisions holding otherwise (Custis, Panicker) have not survived appellate scrutiny. Do not bet a dispositive motion on them.

What must I show to defeat summary judgment under CPLR 3212(f)?

That facts essential to your opposition exist but are unobtainable — and that you were diligent. Identify the specific outstanding discovery, show it is in the movant’s control, and explain the timeline. Conclusory “discovery is incomplete” assertions fail (AAA Chiropractic), and months or years of unexplained inaction is laches (Stoian; Williams).

Counsel-to-Counsel: Referrals and Co-Counsel

If you are litigating a CPLR § 3212 issue — a Brill timeliness fight, a 3212(f) discovery battle, or a 3212(g) order that needs to be challenged on appeal — and want a second set of eyes, or want to hand the motion or appeal to someone who briefs these issues every week, the Law Office of Jason Tenenbaum, P.C. works with referring attorneys across New York: per-diem motion practice, appellate briefing and argument (1,000+ appeals), and co-counsel arrangements on no-fault, personal injury, and insurance coverage litigation. Referring counsel stay involved to the degree they want. Call (516) 750-0595 or use the contact form — attorney inquiries answered same day.

Related Reading

• Understanding CPLR 3212(g): When Summary Judgment Relief Becomes Improper
• CPLR 3212(a): Critical Timing Rules for Summary Judgment Motions in New York
• Laches and CPLR 3212(f) discovery tolling
• EUO admissibility and CPLR 3212(f) in no-fault litigation
• CPLR § 2214 Motion Papers and Notice: The New York Practitioner’s Guide
• The Legal Encyclopedia
• No-Fault Defense practice