Expands basis upon which a motion for summary judgment in lieu of filing a complaint may be made so as to include additional causes of action and alters other civil procedures for the purpose of eliminating procedural wrongdoing in commercial proceedings.
STATE OF NEW YORK
________________________________________________________________________
6129
2009-2010 Regular Sessions
IN ASSEMBLY
February 25, 2009
___________
Introduced by M. of A. SCHIMMINGER -- read once and referred to the
Committee on Judiciary
AN ACT to amend the civil practice law and rules, in relation to causes
of action for which a motion for summary judgment in lieu of a
complaint may be made
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. (a) Motion
5 in lieu of complaint. When an action is based [upon an instrument for
6 the payment of money only or upon any judgment] solely upon any one or
7 more of the following causes of action, the plaintiff may serve with the
8 summons a notice of motion for summary judgment and the supporting
9 papers in lieu of a complaint:
10 1. A cause of action, other than one arising out of a consumer credit
11 transaction, to collect a debt in a sum certain or in a sum which can by
12 computation be made certain based solely upon one or more of the follow-
13 ing documents executed by the defendant:
14 (i) an acknowledgement that the debt to the plaintiff is due;
15 (ii) a negotiable or non-negotiable instrument for the payment of
16 money;
17 (iii) a written agreement to pay a defined amount for goods that have
18 been sold and delivered or services that have been rendered to the
19 defendant;
20 (iv) a guaranty, suretyship agreement, undertaking, or bond securing
21 any of the causes of action specified in subparagraphs (i), (ii), and
22 (iii) of this paragraph or on any obligation which has been reduced to
23 judgment.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD09246-01-9
A. 6129 2
1 2. A cause of action, other than one arising out of a consumer credit
2 transaction, based upon an account the accuracy of which has been
3 confirmed in a writing signed by the defendant or a cause of action
4 based upon a written guarantee of such a confirmed account.
5 3. A cause of action to enforce a written accord or stipulation signed
6 by the defendant and entered into to settle an action, a proceeding, or
7 a previously threatened action or proceeding, where the writing states
8 that it is for that purpose.
9 4. A cause of action based upon a judgment.
10 5. A cause of action based upon an instrument for payment of money
11 only, or a guaranty, suretyship agreement, undertaking, or bond securing
12 the same.
13 (b) Answering papers on the motion. The summons served with such
14 motion papers shall require the defendant to submit answering papers on
15 the motion within the time provided in the notice of motion. The minimum
16 time such motion shall be noticed to be heard shall be as provided by
17 subdivision (a) of rule 320 for making an appearance, depending upon the
18 method of service. If the plaintiff sets the hearing date of the motion
19 later than the minimum time therefor, [he] the plaintiff may require the
20 defendant to serve a copy of his, her, or its answering papers upon him,
21 her, or it within such extended period of time, not exceeding ten days,
22 prior to such hearing date. No default judgment may be entered pursuant
23 to subdivision (a) of section 3215 prior to the hearing date of the
24 motion.
25 (c) Denial of motion. If the motion is denied, the moving and answer-
26 ing papers shall be deemed the complaint and answer, respectively,
27 unless the court orders otherwise.
28 § 2. This act shall take effect on the first of October next succeed-
29 ing the date on which it shall have become a law.
