Here's a short decision out of the Second Department that addresses the timing of motions for summary judgment: Kharyshyn v West End 82, LLC, 2024 NY Slip Op 05586 (2d Dept 2024). 

Typically, courts prefer motions for summary judgment to be made at the close of discovery within a certain amount of time after the filing of the note of issue and certificate of readiness for trial. This makes sense. If discovery is not complete, then ostensibly the court cannot make summary judgments on issues that have not yet been fully explored. 

However, there is no rule that prevents a party from moving for summary judgment before discovery is complete. 

This leaves it up to the practitioner. 

My personal preference is to move for summary judgment at the earliest possible point in the life of a case. It forces all parties to reckon with the strengths and weaknesses of their cases and takes discussions from the theoretical to the real: What do we have here, and what are we doing? 

The question becomes, is further discovery needed or not? Can the Court make a decision on the law with the facts elicited thus far? 

Here, the Appellate Division denied the motion and stated:

“A party opposing summary judgment is entitled to obtain further discovery when it appears that facts supporting the opposing party's position may exist but cannot then be stated. This is especially so where the motion for summary judgment was made prior to the parties conducting depositions.”

Put another way, early motions for summary judgment require a checkmate of the ‘king’, not just a check. Any avenue of escape through the exploration of further discovery may lead to the denial of an early motion for summary judgment.