CPLR 3212’s 120-Day Rule and What Brill Actually Requires for Good Cause

Short answer: 120 days from the filing of the note of issue, measured from service of the notice of motion. Good cause under Brill means a satisfactory explanation for the delay, never the strength of the motion.

Two things about the 120-day rule are counterintuitive. The count does not run from filing, and the escape hatch does not open on the merits. Most untimely New York summary judgment motions are denied without anyone reaching the argument the movant spent forty pages building.

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

CPLR 3212(a) sets two deadlines, and only one of them is 120 days: “Any party may move for summary judgment in any action, after issue has been joined; provided however, that the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown.”

The court-set date is primary. The 120 days applies only “if no such date is set by the court,” and a court-set date can be as short as 30 days after the note of issue. Pull the preliminary conference order, every compliance and certification order, and the part rules first. If any one fixes a date, the statutory default is irrelevant to your case.

When is the motion “made” for the 120-day count?

The statute says “made,” not filed. CPLR 2211 supplies the definition: “A motion is an application for an order. A motion on notice is made when a notice of the motion or an order to show cause is served.”

Service of the notice of motion stops the clock. In an NYSCEF case, where filing and service are the same electronic act, the distinction collapses and nobody notices. With a non-participating party, a paper-served party, or an order to show cause presented for signature days before it issues, the distinction is the case. Docket the service date, not the upload confirmation.

If the 120th day lands on a weekend or public holiday, General Construction Law 25-a carries it: “When any period of time, computed from a certain day, within which or after which or before which an act is authorized or required to be done, ends on a Saturday, Sunday or a public holiday, such act may be done on the next succeeding business day.”

What counts as good cause under Brill v. City of New York?

In Brill v. City of New York, 2 N.Y.3d 648, 2004 NY Slip Op 04787, decided June 10, 2004, the City moved on June 18, 2002 against a note of issue filed June 28, 2001, roughly a year late, and offered no explanation. Chief Judge Kaye, for the majority: “We conclude that ‘good cause’ in CPLR 3212(a) requires a showing of good cause for the delay in making the motion, a satisfactory explanation for the untimeliness.” And the floor: “No excuse at all, or a perfunctory excuse, cannot be ‘good cause.’” The Court reversed and denied the motion, returning the case to the trial calendar.

Good cause is therefore a factual showing about the calendar. It has dates in it, identifies the event that made timely filing impossible, and explains why the movant was not responsible for that event’s timing. A sentence saying counsel was engaged elsewhere is the perfunctory excuse the Court named.

Can the merits of the motion supply good cause?

No. Four months after Brill, in Miceli v. State Farm Mutual Automobile Insurance Co., 3 N.Y.3d 725, decided October 21, 2004, the plaintiff “does not dispute that her motion for summary judgment was made more than 120 days after note of issue was filed, and offers no excuse for her failure to comply with CPLR 3212 (a), arguing only that her motion is meritorious.” The Court rejected that on structural grounds: “if the merit of the motion itself constituted good cause, the statutory deadline would be circumvented and the practice of delaying such motions until the eve of trial encouraged.”

That is the common drafting error here. The affirmation opens on how strong the motion is, adds a paragraph on absence of prejudice, and never states a dated reason for the delay. It has answered the wrong question.

What about an untimely cross-motion?

One workaround is recognized, and it is narrower than its reputation. In Filannino v. Triborough Bridge & Tunnel Authority, 34 A.D.3d 280 (1st Dep’t Nov. 14, 2006), the First Department stated it: “A cross motion for summary judgment made after the expiration of the statutory 120-day period may be considered by the court . . . where a timely motion for summary judgment was made seeking relief ‘nearly identical’ to that sought by the cross motion.”

The cross-movant there still lost: the defendants’ timely motion addressed different causes of action, so the relief was not nearly identical, and the delay was unexcused. The exception turns on overlap of relief, not on the label. Filing a freestanding motion and calling it a cross-motion buys nothing.

Rule table

Requirement	Operative language	Source
Outside date	“such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown”	N.Y. C.P.L.R. 3212(a)
Court-set cutoff	“the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue”	N.Y. C.P.L.R. 3212(a)
When the clock stops	“A motion on notice is made when a notice of the motion or an order to show cause is served.”	N.Y. C.P.L.R. 2211
Weekend or holiday	“ends on a Saturday, Sunday or a public holiday, such act may be done on the next succeeding business day”	N.Y. Gen. Constr. Law 25-a
Good cause standard	“a showing of good cause for the delay in making the motion, a satisfactory explanation for the untimeliness”	Brill v. City of New York, 2 N.Y.3d 648 (2004)
Floor on excuses	“No excuse at all, or a perfunctory excuse, cannot be ‘good cause.’”	Brill, 2 N.Y.3d 648
Merits are not good cause	“if the merit of the motion itself constituted good cause, the statutory deadline would be circumvented”	Miceli v. State Farm Mut. Auto. Ins. Co., 3 N.Y.3d 725 (2004)
Untimely cross-motion	“where a timely motion for summary judgment was made seeking relief ‘nearly identical’ to that sought by the cross motion”	Filannino v. Triborough Bridge & Tunnel Auth., 34 A.D.3d 280 (1st Dep’t 2006)
Supporting proof	“supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions”	N.Y. C.P.L.R. 3212(b)

Drafting-ready text: the timeliness objection in opposition

Raise timeliness first, as a threshold bar. Lift this:

POINT I

THE MOTION IS UNTIMELY UNDER CPLR 3212(a) AND MUST BE DENIED WITHOUT REGARD TO ITS MERITS

The note of issue was filed on [DATE]. [By order dated [DATE], the Court set [DATE] as the date after which no summary judgment motion may be made. / The Court set no such date, so the statutory period expired on [DATE], one hundred twenty days after the note of issue.] Under CPLR 2211, a motion on notice “is made when a notice of the motion or an order to show cause is served.” [PARTY] served its notice of motion on [DATE], [NUMBER] days after the deadline.

[PARTY] sought no leave of court. Its papers offer [no explanation for the delay / the following explanation: [QUOTE IT]]. Under Brill v. City of New York, 2 N.Y.3d 648 (2004), “good cause” under CPLR 3212(a) “requires a showing of good cause for the delay in making the motion, a satisfactory explanation for the untimeliness,” and “[n]o excuse at all, or a perfunctory excuse, cannot be ‘good cause.’” To the extent [PARTY] relies on the asserted strength of its motion or the absence of prejudice, Miceli v. State Farm Mutual Automobile Insurance Co., 3 N.Y.3d 725 (2004), forecloses that showing: “if the merit of the motion itself constituted good cause, the statutory deadline would be circumvented.”

The motion should be denied as untimely, and the Court need not reach Points II through [__].

The cross-movant’s counterpart, where the overlap is real:

This cross-motion is properly before the Court notwithstanding CPLR 3212(a). [MOVANT] timely served its motion on [DATE], seeking summary judgment dismissing the [CAUSE OF ACTION] cause of action on the ground that [GROUND]. This cross-motion seeks judgment on that same cause of action on that same ground. The relief is therefore “nearly identical” within the meaning of Filannino v. Triborough Bridge & Tunnel Authority, 34 A.D.3d 280 (1st Dep’t 2006). [PARTY] does not seek, and the Court need not reach, relief outside the scope of the timely motion.

Worked example: counting 120 days against a real calendar

Case A. Note of issue filed Wednesday, May 20, 2026, no court-set date. Day one is May 21. The 120th day is Thursday, September 17, 2026, the last day to serve the notice of motion. Serving on the 18th is late by one day, and under Brill an unexplained one-day delay fails as the unexplained one-year delay did.

Case B. Note of issue filed Friday, June 5, 2026. The 120th day is Saturday, October 3, 2026. General Construction Law 25-a carries the deadline to Monday, October 5, 2026.

Case C. Same June 5 note of issue, but the compliance conference order sets a 60-day window. The deadline is Tuesday, August 4, 2026. The 120-day figure never enters the calculation, and a movant who calendars it is 62 days late on a date that sat in the file the whole time.

How the other systems count

California runs backward from a reserved hearing date. CCP 437c(a)(2) requires service “at least 81 days before the time appointed for hearing,” and (a)(3) adds a ceiling: “The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise.” There is no good-cause-for-delay doctrine to reach, because there is no delay to excuse. See our CCP 437c piece.

Federal district court runs forward from discovery. FRCP 56(b): “Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery.” The opening clause does most of the work. Note too that 56(b) speaks of filing where CPLR 3212(a) speaks of making.

Bankruptcy adversary proceedings invert that count. Fed. R. Bankr. P. 7056: “Fed. R. Civ. P. 56 applies in an adversary proceeding. But a motion for summary judgment must be filed at least 30 days before the first date set for an evidentiary hearing on any issue that the motion addresses, unless a local rule sets a different time or the court orders otherwise.” Backward from a hearing, not forward from discovery. The three-system comparison is in our summary judgment timing hub.

Pre-filing checklist

• Pull the preliminary conference order, every compliance and certification order, and the part rules. If any sets a date under CPLR 3212(a), calendar that date and ignore 120.
• Confirm the note of issue date from NYSCEF, not from memory or a cover letter.
• Count forward from the day after the note of issue, then run the last day through General Construction Law 25-a.
• Calendar the deadline as a service date. CPLR 2211 makes service, not upload, the act that stops the clock.
• If the deadline has passed, draft the good cause showing before the motion. No dated account of what caused the delay means no good cause.
• Cross-moving late: compare your relief to the timely motion cause of action by cause of action. Overlap in subject matter is not the test; nearly identical relief is.
• Opposing a late motion: timeliness as Point I, CPLR 2211 for the service date, merits in the alternative to complete the record on appeal.

Drafting the New York summary judgment package

A CPLR 3212 motion is an evidentiary filing before it is an argument. Subdivision (b) requires it to be “supported by affidavit, by a copy of the pleadings and by other available proof,” which means a fact affidavit from someone with knowledge carrying every material fact. LegalBriefsUSA drafts complete New York summary judgment packages, notice of motion through memorandum, and oppositions built around a threshold timeliness objection where one is available. If you have a note of issue date, a transcript, and a deadline inside three weeks, that is the assignment to send us.

Related reading: how motion drafting engagements are scoped and supervised, the California separate statement format, and the CCP 1005 court-day count.

Authorities cited

N.Y. C.P.L.R. 3212(a), (b) and 2211, and N.Y. Gen. Constr. Law 25-a, read at nysenate.gov; Brill v. City of New York, 2 N.Y.3d 648, 2004 NY Slip Op 04787 (June 10, 2004), read at the New York Official Reports and independently at caselaw.findlaw.com; Miceli v. State Farm Mut. Auto. Ins. Co., 3 N.Y.3d 725 (Oct. 21, 2004), read at caselaw.findlaw.com and law.justia.com, which agreed on the quoted language, date, and reported citation; Filannino v. Triborough Bridge & Tunnel Auth., 34 A.D.3d 280, 2006 NY Slip Op 08169 (1st Dep’t Nov. 14, 2006), read at the Official Reports and law.justia.com; Cal. Code Civ. Proc. 437c(a)(2), (a)(3), cross-checked against two independent sources that agreed, california.public.law and codes.findlaw.com; Fed. R. Civ. P. 56(b) and Fed. R. Bankr. P. 7056, at law.cornell.edu.

Left out for lack of verification today: two 2026 decisions applying CPLR 3212(a), Intriago v. 18th Highline Associates, LLC and Portillos v. Moxie Property Solutions LLC, which we read on the Official Reports but could not corroborate from a second independent source; the often-quoted line that statutory time frames “are not options, they are requirements,” which our sources did not agree in locating within the Brill opinion itself; any Second, Third, or Fourth Department formulation of the nearly-identical-relief exception; and any individual part rule shortening the CPLR 3212(a) window, which varies by justice and must be read in your own case.

LegalBriefsUSA.com provides drafting and research support to licensed attorneys and law firms. This article is written for attorneys, is not legal advice, and does not create an attorney-client relationship.