Provides that the plaintiff may serve, with the summons, a motion for summary judgment, with supporting papers described in this section, when the action is based solely upon: any judgment; an instrument for the payment of money only; any other writing, signed by the defendant, that contains a clear, unambiguous, absolute, unconditional and irrevocable obligation for the payment of money in a sum certain or in a sum which can by computation be made certain; or a signed guaranty, suretyship agreement, undertaking or bond securing an obligation; makes related provisions.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A4923
SPONSOR: Weprin TITLE OF BILL: An act to amend the civil practice law and rules, in
relation to motions for summary judgment in lieu of complaint; and
repealing certain provisions of such law relating thereto
PURPOSE OF BILL:
This measure is intended to revise and reform CPLR 3213.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1. Section 3213 of the civil practice law and rules, as amended
by chapter 210 of the laws of 1969, is amended to read as follows:
§ 3213. Motion for summary judgment in lieu of complaint. (a) Motion in
lieu of complaint. The plaintiff may serve, with the summons, a motion
for summary judgment, with supporting papers described in this section,
when the action is based solely upon:
(1) any judgment,
(2) an instrument for the payment of money only,
(3) any other writing, signed by the defendant, that contains a clear,
unambiguous, absolute, unconditional and irrevocable obligation for the
payment of money in a sum certain or in a sum which can by computation
be made certain, or
(4) a signed guaranty, suretyship agreement, undertaking or bond secur-
ing an obligation described in paragraphs (1), (2) or (3) of this subdi-
vision (a).
(b) Supporting proof. A motion for summary judgment under this section
shall be supported as provided in subdivision b of rule 3212 of this
chapter. In addition, the motion shall include a copy of the document on
which the action is based. If the action is based on a judgment, the
papers shall include a copy of the judgment certified or authenticated
in accordance with applicable law.
(c) Answering and reply papers on the motion.
(1) The summons served with such motion papers and the notice of motion
shall state that the defendant must serve answering papers on the motion
on or before a date which is not less than thirty days after the
completion of service on the defendant of the summons and supporting
papers.
(2) The notice of motion shall also state the date on which the motion
will be heard, which shall be at least fourteen days after the answering
papers are due.
(3) Any reply papers shall be served seven days before the hearing date.
(4) If completion of service does not occur with respect to all defend-
ants at least 30 days prior to the date stated in the notice of motion
for service of answering papers, the plaintiff may set a new hearing
date by serving an amended notice of motion. There may be only one hear-
ing date for all defendants under this section. The amended notice shall
set a new response date for service of answering papers and a new hear-
ing date which shall comply with the requirements of paragraphs (1) and
(2) hereof. With respect to any defendant who has been served with the
summons and original notice of motion, the amended notice of motion may
be served on such defendant in the manner set forth under rule 2103 of
this chapter.
(5) No default judgment may be entered pursuant to subdivision (a) of
section 3215 prior to the hearing date of the motion.
(d) Decision on the motion; relief. The court shall deny the motion if
it determines that none of the criteria set forth in subdivision (a) of
this section is satisfied. Otherwise, the criteria for deciding the
motion are identical to those applicable with respect to a motion under
rule 3212. The court may enter such orders and grant such relief as are
provided in rule 3212. If summary judgment disposing of the motion in
its entirety is not granted, the moving and answering papers shall be
deemed the complaint and answer, respectively, unless the court orders
pleadings be served, in which case, the complaint and answer shall be
served within such time as the court shall order.
(e) Actions against consumers. This section is inapplicable where the
plaintiffs claim is based upon a transaction entered into between a
creditor, seller, transferor or lessor as one party with a natural
person who is the debtor, buyer, transferee or lessee as the second
party, and the money, other property or services which are the subject
of the transaction are primarily for personal, family or household
purposes.
JUSTIFICATION:
This measure is intended to revise and reform CPLR 3213. CPLR 3213 was
first enacted as part of the CPLR in 1963. As the Advisory Committee
stated at the time, the new provision was "intended to provide a speedy
and effective means of securing a judgment on claims presumptively meri-
torious. In the actions covered, formal complaints are superfluous and
even the delay incident upon waiting for an answer and then moving for
summary judgment is needless."
Although CPLR 3213 has generally proven useful, the definition of
"instrument for payment of money only" has been problematic. As one
leading commentator has stated," the question of what kind of instrument
qualifies for CPLR 3213 treatment has been the most disputed ques- tion
arising under it. There is a plethora of case law, not all of it recon-
cilable." Siegel, Practice Commentaries, C3213:3. Because CPLR 3213
actions are often detoured into a dispute over whether the action quali-
fies for treatment under CPLR 3213 in the first place rather than wheth-
er the plaintiff is entitled to summary judgment, Professor Siegel
advises that plaintiffs stay away from CPLR 3213 in all but the clearest
of cases. See also Schulz v. Barrows, 94 N.Y2d 624, 628 (2000) ("When
all goes smoothly, plaintiffs who choose this accelerated procedure can
have relief in record time. The significant body of 3213 case law,
however, signals that the course is not always a smooth one").
In addition, there are other problems with the procedures provided in
CPLR 3213, and its language is confusing. The revised language is
intended to clarify which writings qualify under CPLR 3213, and be easi-
er to understand, so that decisions on CPLR 3213 motions are more likely
to turn on whether there is an issue of fact requiring trial or further
discovery rather than whether the matter can be decided at the outset as
a matter of law.
To achieve these results CPLR 3213 would be divided into subdivisions.
Under current law "an instrument for payment of money only" and "any
judgment" qualify for CPLR 3213 treatment. The new subdivision (a) would
add "any other writing signed by the defendant, that contains a clear,
unambiguous, absolute, unconditional and irrevocable obligation or
acknowledgment of an obligation for the payment of money in a sum
certain or in a sum which can by computation be made certain" and "a
signed guaranty, suretyship agreement, undertaking or bond securing such
a debt." The key would be not the form of the underlying documentation,
but rather, documentation that is signed by the defendant, and contains
a "clear, unambiguous, absolute, unconditional and irrevocable obli-
gation." These additions are intended to codify prevailing current case-
law
Subdivision (b) would now govern the proof that would be required on the
motion. That subdivision incorporates the provisions of CPLR 3212(b)
with respect to such proof, and is intended to make clear that while
CPLR 3213 is designed to permit summary judgment at the outset of the
case and without the need for a complaint, the proof which must be
presented to obtain summary judgment is the same under CPLR 3213 as it
is under CPLR 3212. Of course, a plaintiff in a given case may be aided
by certain presumptions that exists independently of CPLR 3213, such as
presumptions governing signatures on an instrument under UCC Article 3
(See UCC 3-307), the elimination of defenses against holders in due
course (see UCC 3-305) (but see UCC 3-306 governing rights of holders
who are not holders in due course), so in many cases the proof required
of the plaintiff may be relatively minimal. Subdivision (b) also
requires that a copy of the writing on which the suit is based must be
annexed to the moving papers, and in the case of a judgment the copy
must be certified or authenticated as may be required by law.
Subdivisions (c) and (d) are designed to deal with procedural aspects of
the motion and the standard to be applied in determining the motion.
CPLR 3213 as currently drafted is confusing in its language and creates
procedural confusion that can lead to the dismissal of the action even
where the plaintiff otherwise might have a claim. See Schulz v. Barrows,
supra. The new CPLR 3213(c) is designed to create a clear and easily
understood procedure, which affords the defendant an adequate time to
respond. A thirty-day time frame is selected over the current require-
ment that the defendant shall be given the time provided under CPLR
320(a) to respond as that time frame can differ depending on the type of
service and is not easily understood. A thirty-day time frame is simpler
and can be readily understood by the defendant receiving the papers. In
view of the minimum thirty days provided the defendant to respond to the
motion papers, the time for reply papers has been extended to at least
seven days before the hearing date, with the hearing date at least four-
teen days after the answering papers are due.
One of the problems with the current CPLR 3213 is that the plaintiff
cannot always be certain when service will be effected on the defendant,
and where the defendant proves difficult to serve, or service is other-
wise delayed, the moving papers do not provide defendant the statutory
time to respond. This problem is particularly acute where plaintiff sues
a number of defendants, some of which are served within the relevant
time requirements while others are not. Under the revised CPLR 3213(c),
the plaintiff, in that situation, may set a new hearing date, and may
provide notice to defendants who have been properly served in accordance
with CPLR 2103. This avoids the need to dismiss the action for late
service, but affords all defendants the statutory response time.
Subdivision (d) governs the resolution of the motion. The court would
either grant summary motion in favor of plaintiff or defendant, or deny
it and direct the action to proceed, either with or without a formal set
of pleadings. CPLR 3212 is incorporated as the standard for granting the
motion, and the court is empowered to enter orders and grant relief as
provided in CPLR 3212. For example, the court can, in an appropriate
case, direct that the parties engage in discovery proceedings and may at
a subsequent time grant summary judgment if it is appropriate.
Subdivision (e) is intended to carve out of CPLR 3213 consumer credit
transactions. While CPLR 3213 is a useful device, where the transaction
is against a consumer, the procedural shortcut of CPLR 3213 may impose
an unfair burden on the individual consumer. The consumer should not be
forced to defend against a summary motion at the commencement of the
action. In this respect, a consumer is less likely to have ready access
to legal counsel, and more likely to appear pro se. New York law
contains numerous provisions granting special rights to consumers. See
General Business Law Articles 34, 34A and 346 relating to billing prac-
tices, General Obligation Law § 5-327, which gives the consumer the
right to collect legal fees if he successfully defends or bring an
action based on an agreement which gives the creditor, seller or lessor
the right to legal fees. Other states have enacted laws for the
protection of the consumer. See Ohio Consumer Sales Practices Act and
Kansas Consumer Protection Act. The reference in subdivision (e) to
"other property" includes all types of proper-hi, including real and
personal.
PRIOR LEGISLATIVE HISTORY:
New Bill
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None
EFFECTIVE DATE:
This act shall take effect on the first of January next succeeding the
date on which it shall have become a law.
