A02923 Summary:

BILL NOA02923
 
SAME ASNo Same As
 
SPONSORWeprin
 
COSPNSR
 
MLTSPNSR
 
Amd S3213, CPLR
 
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.
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A02923 Actions:

BILL NOA02923
 
01/20/2015referred to judiciary
01/06/2016referred to judiciary
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A02923 Committee Votes:

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A02923 Floor Votes:

There are no votes for this bill in this legislative session.
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A02923 Text:



 
                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.
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