CPLR 3212(a) Timeliness: A Summary Judgment Motion Is Made When Served, Not When Filed

Key Takeaways

• Under CPLR 2211, a motion is “made” when the notice of motion is served, and under CPLR 2103, service by mail on a party’s attorney is complete upon mailing.
• In BSS Medical v Metropolitan, the notice of trial (the Civil Court analogue of a note of issue) was filed June 14, 2018, so the summary judgment motion served October 12, 2018 was timely under CPLR 3212(a)‘s 120-day default window.
• The Civil Court had measured timeliness incorrectly; the Appellate Term reversed.
• In paper-filing courts, the postmark — not the courthouse stamp — starts and stops the clock.

Few procedural traps recur as reliably as the summary judgment deadline. Absent a court-ordered date, CPLR 3212(a) requires the motion to be made no later than 120 days after the note of issue, except on a showing of good cause — a standard enforced unforgivingly since Brill v City of New York. The question this Appellate Term case answers is more basic: when, exactly, is a motion “made”?

The Decision

BSS Med., P.C. v Metropolitan Prop. & Cas. Ins., 73 Misc 3d 146(A)(App. Term 2d Dept. 2021) (archived copy; the original court document may no longer be available on nycourts.gov)

“A motion is made when the notice of motion is served (see CPLR 2211; Russo v Eveco Dev. Corp., 256 AD2d 566, 566 ; Chimbay v Palma, 14 Misc 3d 130, 2007 NY Slip Op 50019 ), and when a motion is served upon a party’s attorney by mail, service is complete upon mailing (see CPLR 2103 ; Pietrafesa v Canestro, 130 AD3d 602 ). Here, it is uncontroverted that the notice of trial, the Civil Court equivalent of a note of issue, was filed on June 14, 2018 [*2]and, thus, contrary to the Civil Court’s determination, defendant’s motion was timely when it was served on October 12, 2018.”

This is a relic of a bygone era, well should be. Yet, we still in 2022 have courts that do not engage in e-filing, and placement of the motion in the mail is still dispositive of when the 120-day or 60-day clock begins to run. I also believe Straniere was correct in finding that 3212(a) should not apply to lower courts. If pro-se, an NOT is unnecessary. Same is not true when two parties are attorney represented. NY would best be served by case management orders with cut-off dates.

The Legal Framework

Three CPLR provisions interlock here:

• CPLR 3212(a) sets the outer limit for summary judgment motions — a court-fixed date no earlier than 30 days after the note of issue, or 120 days by default — with late motions permitted only on good cause shown for the delay in making the motion.
• CPLR 2211 defines when a motion is made: upon service of the notice of motion, not upon filing with the clerk.
• CPLR 2103(b)(2) completes the circle: where service is on an attorney by mail, service is complete upon mailing.

Put together, the dispositive date in a mail-service court is the date the motion went into the mailbox. Count it out in BSS Medical: the notice of trial was filed June 14, 2018; 120 days ran to mid-October; the motion was served October 12, 2018 — inside the window. The Civil Court, apparently keying off a later date, held the motion untimely and was reversed.

The Civil Court wrinkle matters too. In New York City Civil Court (and its District Court counterparts), the notice of trial performs the note-of-issue function, and the Appellate Term has repeatedly treated it as the CPLR 3212(a) trigger. For a deeper treatment of the timing rules and the Brill good-cause doctrine, see the firm’s discussion of CPLR 3212(a) timing rules and the related CPLR 3212(g) paradigm.

Why This Matters for No-Fault and Civil Practice

For movants, the rule is forgiving: if the 120th day is approaching and the motion is ready, mailing it that day preserves timeliness even though the court will not see it for days. Keep the affidavit of service and, ideally, independent proof of the mailing date — the postmark is your deadline evidence.

For parties opposing a late-looking motion, do the arithmetic from the right dates before crying Brill. A motion stamped by the clerk after day 120 may still have been made on day 118 if it was mailed then. Conversely, e-filed cases work differently: filing and service typically coincide through NYSCEF, so the mailing rule rarely rescues anyone there.

For no-fault practitioners specifically, summary judgment is the dominant dispositive vehicle — the entire architecture of prima facie proof in no-fault actions is built around CPLR 3212 motion practice. A timeliness miscalculation forfeits defenses that were otherwise fully proven, because an untimely motion is denied without reaching the merits absent good cause.

As the commentary above notes, the mailing rule is a relic. Until the lower courts uniformly adopt e-filing or case management orders with explicit cut-off dates, the postmark remains dispositive — and practitioners must live with it.

Practice Pointers

1. Calendar from the notice of trial in Civil Court. It is the note-of-issue equivalent, and the 120 days (or any shorter court-ordered period) runs from its filing.
2. Serve first, file second. Because the motion is made upon service, mail service on the deadline date is timely even if filing happens afterward.
3. Preserve proof of mailing. An affidavit of service reciting the mailing date, plus office mailing logs, will defeat a timeliness challenge.
4. Do not count on good cause. Brill requires an excuse for the lateness itself; the merit of the motion is irrelevant to that inquiry.

Frequently Asked Questions

When is a motion “made” under New York law?

Under CPLR 2211, a motion is made when the notice of motion is served. Where service is made by mail on a party’s attorney, CPLR 2103 deems service complete upon mailing — so the mailing date, not the filing date, controls timeliness.

How long do you have to move for summary judgment under CPLR 3212(a)?

No later than 120 days after the note of issue is filed, unless the court sets an earlier date (which may be as short as 30 days after the note of issue). Late motions require a showing of good cause for the delay.

What is the note of issue equivalent in New York City Civil Court?

The notice of trial. The Appellate Term treats its filing as the event that starts the CPLR 3212(a) clock in Civil Court actions, including no-fault provider suits.

Related Resources

• A formulation of a prima facie case — the firm’s cluster hub on summary judgment proof in no-fault actions
• The firm’s Legal Encyclopedia
• No-Fault defense practice
• Understanding the CPLR 3212(g) paradigm for summary judgment motions
• Critical timing rules under CPLR 3212(a) for summary judgment motions
• How reasonable excuse applies when challenging default judgments
• No-fault verification requirements and compliance standards
• New York No-Fault Insurance Law