New York State Court of Claims

New York State Court of Claims

KUN v. THE STATE OF NEW YORK, #2009-029-068, Claim No. 114904, Motion No. M-77150


Defendant granted an extension of court-scheduled deadline for making motion for summary judgment. Court found defendant demonstrated good cause pursuant to Brill v City of New York.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Stephen J. Maher, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 25, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves for an order extending its time to make a motion for summary judgment. Claimant does not oppose the motion.

Defense counsel explains that he was assigned to the case in October 2008 after his return from a year of military service. Prior to the case being transferred from another assistant attorney general, the parties executed a preliminary conference order, subsequently “so-ordered” by the court, that provided that summary judgment motions were to be made within 45 days after a note of issue was filed. Claimant filed a note of issue on June 9, 2009 and, being unaware of the preliminary conference order due to its having been misplaced in his file, defense counsel assumed he had 120 days, or until October 9, 2009, in which to make a motion for summary judgment. On July 31, 2009, counsel received a letter from the court scheduling the claim for trial commencing February 23, 2010. He called claimant’s counsel and learned for the first time that the court had directed that a motion be made within 45days, rather than 120 days, after the note of issue was filed, a deadline that had already expired at that point. Defense counsel advises that his adversary stated he would not object to an application seeking to extend the deadline, and the court notes no opposition to the current motion has been received.

CPLR 3212(a) provides that the court may set a deadline for summary judgment motions, no earlier than 30 days and no later than 120 days following the filing of the note of issue, and that if the court does not set such a date, such motion shall be made no later than 120 days after the filing of the note of issue “except with leave of court on good cause shown.” In Brill v City of New York (2 NY3d 648, 652), the Court of Appeals held that the statute “requires a showing of good cause for the delay in making the motion – a satisfactory explanation for the untimeliness – rather than simply permitting meritorious, nonprejudicial filings, however tardy.”

Based on the foregoing circumstances – the re-assignment of the case after counsel’s return from military service, the fact that 120 days has not yet expired since the note of issue was filed, the fact that plenty of time remains for preparation and submission of a summary judgment motion with sufficient time to allow for a decision in advance of the February 2010 trial without disruption of the court’s calendar, and the lack of any opposition to the requested relief – the court concludes that defendant has satisfied the statutory “good cause” requirement and that sufficient grounds exist for the court to extend its prior self-imposed deadline.

Accordingly, the motion is granted. Defendant may submit a motion for summary judgment to be made returnable November 25, 2009. Defendant’s papers shall be served no later than October 26, 2009 and opposition and reply papers are to be served in accordance with the normal requirements of the CPLR.

September 25, 2009
White Plains, New York

Judge of the Court of Claims

Papers considered:

Notice of Motion and Affirmation in Support