This is Part VI in a series of articles explaining the fundamentals of Commercial Division practice. This article provides an overview of motions for summary judgment and oral argument in the Commercial Division.

Part I in the series, addressing the first steps taken when litigating in the Commercial Division, can be found here; Part II, addressing initial steps such as filing and pleading, can be found here; Part III, addressing the timeline of litigation in the Commercial Division, can be found here; and Part IV, addressing discovery, can be found here; and Part V, addressing experts, can be found here.

Timing

Any party may move for summary judgment “after issue has been joined”—i.e., after all defendants have answered the operative complaint (CPLR 3212[a]; Charter One Bank, FSB v. Houston 300 AD2d 429, 430 [2d Dep’t 2002]).

However, if a party does not object to a “premature” summary judgment motion, on appeal any subsequent objection to timeliness may be considered waived (see, e.g., Finsel v. Wachala, 79 AD3d 1402, 1403 n.2 [3d Dep’t 2010] [defendant moved for summary judgment prior to answering]; accord, Kilmer v. Miller, 96 AD3d 1133, 1135 n.1 [3d Dep’t 2012] [in response to defendant’s CPLR 3211 motion to dismiss, plaintiff cross-moved for summary judgment]).

Practice tip: Though summary judgment motions typically are not filed or heard before the issue is joined, there are exceptions. For example, the court may convert a motion to dismiss into a motion for summary judgment, after first giving notice to the parties so they may submit additional evidence (CPLR 3211[c]).

Moreover, if an action is “based upon an instrument for the payment of money only or upon any judgment,” a plaintiff may serve with the summons a motion for summary judgment in lieu of a complaint (CPLR 3213). In that instance, a statement of material facts is not required (Comm’l Div. Rule 19-a).

Note that the rules are currently unclear on whether the Commercial Division may hear motions to enforce its own judgments (see 22 NYCRR 202.70[c][5]); the Advisory Council has proposed an amendment clarifying that it may do so (see Memo Proposal [Dec. 26, 2024]).

Once issue is joined, summary judgment motions may be filed up to a certain date, set by the court, but not “earlier than thirty days after the filing of the note of issue” (CPLR 3212[a]).

The default deadline for moving for summary judgment motions is 120 days after the filing of the note of issue, “except with leave of court on good cause shown” (id.). Deadlines will be strictly enforced (see, e.g., the seminal case Brill v. City of N.Y., 2 N.Y.3d 648, 653-54 [2004] [good cause required for untimely summary judgment motion]).

Procedure

General motion procedure is laid out in 22 NYCRR 202.8 et seq., CPLR 2214-2221, and Commercial Division Rules 16-18, 19-a, 22, and 24.

The movant chooses the motion’s “return date,” which sets the timeline for an opposition and a reply; generally, motions for summary judgment are filed at least sixteen days in advance, oppositions seven days in advance, and any reply papers one day in advance of the return date (CPLR 2214[b]).

In some counties, the return date is the date when the motion will be heard (note that argument is not guaranteed; see infra Substance); in others, including New York County, the return date is the date when papers are deemed fully submitted by the clerk’s office and thereafter sent to the chambers of the presiding justice.

Practitioners should consult county and individual justices’ rules to confirm the operation of a motion’s “return date” in their jurisdiction.

Practice tip: In practice, parties sometimes stipulate a briefing schedule ahead of time and file the stipulation with the court along with the motion (the stipulation is effective without court order).

Practice tip: The Commercial Division also has a rule allowing parties to move for a pre-trial evidentiary hearing or immediate trial when either “may be effective in resolving a factual issue sufficient to effect the disposition of a material part of the case.” (Comm’l Div. Rule 9-a).

Examples of such circumstances include dispositive motions (including motions for summary judgment) and jurisdictional issues (Comm’l Div. Rule 9-a[a], [d]; see also CPLR 2218). However, Rule 9-a notes that the rules governing motions to dismiss and/or motions for summary judgment must be satisfied (Comm’l Div. Rule 9-a), so this rule appears to simply encourage early resolution rather than provide an alternative avenue for relief.

The rule does, however, authorize parties to request limited, expedited discovery targeting the factual issue (Comm’l Div. Rule 9-a).

While the Commercial Division technically does not allow dispositive motions, like summary judgment motions, to be adjourned without the court’s consent (Comm’l Div. Rule 16[c]), in their individual rules most justices allow adjournment by stipulation.

Parties can stipulate to adjourn the return date of a motion three times, for up to 60 days, without court permission; after that time court approval is required (see, e.g., Individual Rules for Hon. Andrea Masley). Practitioners should consult their justice’s individual rules to determine if the justice has a motion adjournment rule.

Substance

The papers required when moving for summary judgment are identified in CPLR 3212 and include a copy of the pleadings, and other “available proof” such as “depositions and written admissions,” together with an affidavit from a person “having knowledge of” the “material facts.”

These general requirements are further clarified in Commercial Division Rules 16-18. For example, parties must follow special rules pertaining to exhibits (Comm’l Div. Rule 16[a]). There are also restrictions on word counts for briefs and affidavits (Comm’l Div. Rule 17).

Practice tip: Amicus briefs in support of motions are currently not permitted in the Commercial Division. A rule change proposed by the Commercial Division Advisory Council, however, would authorize seeking permission to file amicus briefs (see Memo Proposal [Dec. 20, 2024].

The Commercial Division grants individual justices discretion to require movants to file a statement of material facts in support of their motion (Comm’l Div. Rule 19-a[a]). When required, the statement must be composed of numbered paragraphs, each stating a material fact and citing evidence in support (Comm’l Div. Rule 19-a[b], [d]).

The opposing party must respond to each statement in the statement of material facts (see Comm’l Div. Rule 19-a[b] for precise requirements). Failure to dispute a proffered statement of fact will result in the statement being deemed admitted (Comm’l Div. Rule 19-a[c]). Upon request, the movant must provide to opposing counsel a copy of the statement in word processing format (Comm’l Div. Rule 19-a[c]).

Practice tip: Check your assigned justice’s individual rules to determine whether they require a Rule 19-a statement. Some justices prefer that the parties confer and submit a joint statement of undisputed material facts in lieu of competing Rule 19-a statements.

Practice tip: There is a pending proposal to eliminate the discretion granted to all individual justices state-wide to require submission of statements of material fact (see Memo Proposal [Nov. 4, 2024] [proposing to repeal 22 NYCRR 202.8-g]).

The proposal by the Advisory Committee on Civil Practice notes that the statements place an excessive burden on litigants and courts and that “[t]here is no value to requiring the creation of another document specifying the same information that is provided in an attorney’s affirmation or memorandum of law.” Section 202.8-g was originally modeled on Commercial Division Rule 19-a, and became effective Feb. 1, 2021 (AO-270-20 [Dec. 29, 2020], Ex. U).

As initially implemented, and in contrast to Rule 19-a, Section 202.8-g mandated the submission of statements of material fact in connection with every motion for summary judgment. The mandatory nature of the rule came under criticism and was later amended (eff. July 1, 2022) to conform to Rule 19-a and make the statements subject to the discretion of individual justices (AO-141-22 [June 13, 2022]).

Should Section 202.8-g now be repealed, it is unclear whether the Commercial Division will follow suit. Commercial Division practitioners should remain alert to developments regarding the potential elimination of Section 202.8-g and its impact, if any, on Rule 19-a.

Though a party cannot defeat summary judgment by pleading ignorance of a fact, it can oppose summary judgment on the basis that the necessary facts to oppose are unavailable or yet to be disclosed (CPLR 3212[f]).

Requests for relief pursuant to CPLR 3212[f] are common when discovery, for whatever reason, is not yet complete. Thus, in many cases it may be advantageous to the party contemplating a motion for summary judgment to wait until all disclosure mandated by the court has been completed.

Oral argument is not guaranteed. Parties must request oral argument, which will be granted on a case-by-case basis.

The court will give, “if practicable,” fourteen days’ notice of the argument date. Note that counsel must be prepared to discuss any other outstanding issues and to schedule trial and/or a hearing (Comm’l Div. Rule 22). If oral argument goes forward, it will be assigned a time slot on a particular date (Comm’l Div. Rule 34).

Practice tip: Parties must request the right to appear virtually 48 hours before the hearing (id.). Justices may also order arguments virtually without any request.

Others send invitations for oral argument via virtual platforms (such as Microsoft Teams) but intend that argument proceed in person. Individual rules should be consulted to determine whether any particular justice has procedures on the subject.

Conclusion

This concludes our series on practice in the New York Commercial Division. We welcome feedback on this series and look forward to seeing many of you at the courthouse.

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Reprinted with permission from the April 16, 2025 issue of New York Law Journal. © 2025 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.