Relates to conditions when a motion for summary judgment in lieu of complaint may be entered; establishes the proof required to support such motion; establishes procedures for answering such a motion, and the criteria court must use to render a decision on the motion.
STATE OF NEW YORK
________________________________________________________________________
2923
2015-2016 Regular Sessions
IN ASSEMBLY
January 20, 2015
___________
Introduced by M. of A. WEPRIN -- read once and referred to the Committee
on Judiciary
AN ACT to amend the civil practice law and rules, in relation to motions
for summary judgment in lieu of complaint
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 3213 of the civil practice law and rules, as
2 amended by chapter 210 of the laws of 1969, is amended to read as
3 follows:
4 § 3213. Motion for summary judgment in lieu of complaint. [When an
5 action is based upon an instrument for the payment of money only or upon
6 any judgment, the] (a) Motion in lieu of complaint. The plaintiff may
7 serve, with the summons, a notice of motion for summary judgment [and
8 the], with supporting papers [in lieu of a complaint] described in this
9 section, when the action is based solely upon:
10 (1) any judgment,
11 (2) an instrument for the payment of money only,
12 (3) any other writing, signed by the defendant, that contains a clear,
13 unambiguous, absolute, unconditional and irrevocable obligation for the
14 payment of money in a sum certain or in a sum which can by computation
15 be made certain, or
16 (4) a signed guaranty, suretyship agreement, undertaking or bond
17 securing an obligation described in paragraph (1), (2) or (3) of this
18 subdivision.
19 [The summons served with such motion papers shall require the defend-
20 ant to submit answering papers on the motion within the time provided in
21 the notice of motion. The minimum time such motion shall be noticed to
22 be heard shall be as provided by subdivision (a) of rule 320 for making
23 an appearance, depending upon the method of service. If the plaintiff
24 sets the hearing date of the motion later than the minimum time there-
25 for, he may require the defendant to serve a copy of his answering
26 papers upon him within such extended period of time, not exceeding ten
27 days, prior to such hearing date.]
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07588-01-5
A. 2923 2
1 (b) Supporting proof. A motion for summary judgment under this section
2 shall be supported as provided in subdivision (b) of rule thirty-two
3 hundred twelve of this article. In addition, the motion shall include a
4 copy of the document on which the action is based. If the action is
5 based on a judgment, the papers shall include a copy of the judgment
6 certified or authenticated in accordance with applicable law.
7 (c) Answering and reply papers on the motion.
8 (1) The summons served with such motion papers and the notice of
9 motion shall state that the defendant must serve answering papers on the
10 motion on or before a date which is not less than thirty days after the
11 completion of service on the defendant of the summons and supporting
12 papers.
13 (2) The notice of motion shall also state the date on which the motion
14 will be heard, which shall be at least fourteen days after the answering
15 papers are due.
16 (3) Any reply papers shall be served seven days before the hearing
17 date.
18 (4) If completion of service does not occur with respect to all
19 defendants at least thirty days prior to the date stated in the notice
20 of motion for service of answering papers, the plaintiff may set a new
21 hearing date by serving an amended notice of motion. There may be only
22 one hearing date for all defendants under this section. The amended
23 notice shall set a new response date for service of answering papers and
24 a new hearing date which shall comply with the requirements of para-
25 graphs (1) and (2) of this subdivision. With respect to any defendant
26 who has been served with the summons and original notice of motion, the
27 amended notice of motion may be served on such defendant in the manner
28 set forth under rule twenty-one hundred three of this chapter.
29 (5) No default judgment may be entered pursuant to subdivision (a) of
30 section 3215 prior to the hearing date of the motion. [If the motion is
31 denied, the moving and answering papers shall be deemed the complaint
32 and answer, respectively, unless the court orders otherwise.]
33 (d) Decision on the motion; relief. The court shall deny the motion if
34 it determines that none of the criteria set forth in subdivision (a) of
35 this section are satisfied. Otherwise, the criteria for deciding the
36 motion are identical to those applicable with respect to a motion under
37 rule thirty-two hundred twelve of this article. The court may enter such
38 orders and grant such relief as are provided in rule thirty-two hundred
39 twelve of this article. If summary judgment disposing of the motion in
40 its entirety is not granted, the moving and answering papers shall be
41 deemed the complaint and answer, respectively, unless the court orders
42 pleadings be served, in which case, the complaint and answer shall be
43 served within such time as the court shall order.
44 (e) Actions against consumers or with respect to home loans. This
45 section is inapplicable:
46 (1) where the plaintiff's claim is based upon a transaction entered
47 into between a creditor, seller, transferor or lessor as one party with
48 a natural person who is the debtor, buyer, transferee or lessee as the
49 second party, and the money, other property or services which are the
50 subject of the transaction are primarily for personal, family or house-
51 hold purposes; or
52 (2) where the plaintiff's claim is based upon a note evidencing a
53 "home loan" as defined in subdivision five of section thirteen hundred
54 four of the real property actions and proceedings law.
55 § 2. This act shall take effect on the first of January next succeed-
56 ing the date on which it shall have become a law.
