Untimely service of a summary judgment motion.

Plaintiff commenced this action to recover damages for alleged discrimination on the basis of his sexual orientation. Plaintiff filed a note of issue on May 15, 2006, and motions for summary judgment, if any, were to be made within 60 days thereafter, pursuant to a preliminary conference order.

Defendants' motion for summary judgment was untimely served but Supreme Court accepted counsel's excuse that she had mistakenly thought she had 120 days, not 60, and granted the motion on the merits.

The First Department reversed, in Crawford v. Liz Claiborne, which was decided on November 1, 2007. The court noted that a court will get to the merits of an untimely summary judgment motion only if movant demonstrates a satisfactory explanation for the untimeliness. Here, the court found defendants' explanation nothing more than a perfunctory claim of law office failure, which is insufficient to constitute good cause under CPLR 3212(a).

The court gave short shrift to the argument that the motion was untimely by just five days, saying that it does not defeat the requirement of a good cause for the delay.

There was a lengthy dissent in which two judges cited what they thought was ambiguity created by the motion court's referring to a local rule in its preliminary conference order. The dissenters also took sharp exception to the court's remitting the matter for reassignment to another judge, finding this a wholly unnecessary impugning of the motion court.