S T A T E   O F   N E W   Y O R K
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                                  2923

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                            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:

  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:
  S 3213. Motion for summary judgment in lieu of complaint.    [When  an
action is based upon an instrument for the payment of money only or upon
any  judgment,  the]  (A) MOTION IN LIEU OF COMPLAINT. THE plaintiff may
serve, with the summons, a notice of motion for  summary  judgment  [and
the],  WITH supporting papers [in lieu of a complaint] 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
SECURING  AN  OBLIGATION  DESCRIBED IN PARAGRAPH (1), (2) OR (3) OF THIS
SUBDIVISION.
  [The summons served with such motion papers shall require the  defend-
ant to submit answering papers on the motion within the time provided in
the  notice  of motion. The minimum time such motion shall be noticed to
be heard shall be as provided by subdivision (a) of rule 320 for  making
an  appearance,  depending  upon the method of service. If the plaintiff
sets the hearing date of the motion later than the minimum  time  there-
for,  he  may  require  the  defendant  to serve a copy of his answering
papers upon him within such extended period of time, not  exceeding  ten
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

  (B) SUPPORTING PROOF. A MOTION FOR SUMMARY JUDGMENT UNDER THIS SECTION
SHALL  BE  SUPPORTED  AS  PROVIDED IN SUBDIVISION (B) OF RULE THIRTY-TWO
HUNDRED TWELVE OF THIS ARTICLE. 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
DEFENDANTS  AT  LEAST THIRTY 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 HEARING DATE FOR ALL DEFENDANTS  UNDER  THIS  SECTION.  THE  AMENDED
NOTICE SHALL SET A NEW RESPONSE DATE FOR SERVICE OF ANSWERING PAPERS AND
A  NEW  HEARING  DATE  WHICH SHALL COMPLY WITH THE REQUIREMENTS OF PARA-
GRAPHS (1) AND (2) OF THIS SUBDIVISION. 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 TWENTY-ONE HUNDRED THREE 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. [If the motion  is
denied,  the  moving  and answering papers shall be deemed the complaint
and answer, respectively, unless the court orders otherwise.]
  (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  ARE  SATISFIED.  OTHERWISE, THE CRITERIA FOR DECIDING THE
MOTION ARE IDENTICAL TO THOSE APPLICABLE WITH RESPECT TO A MOTION  UNDER
RULE THIRTY-TWO HUNDRED TWELVE OF THIS ARTICLE. THE COURT MAY ENTER SUCH
ORDERS  AND GRANT SUCH RELIEF AS ARE PROVIDED IN RULE THIRTY-TWO HUNDRED
TWELVE OF THIS ARTICLE. 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 OR WITH  RESPECT  TO  HOME  LOANS.  THIS
SECTION IS INAPPLICABLE:
  (1)  WHERE  THE  PLAINTIFF'S 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 HOUSE-
HOLD PURPOSES; OR
  (2) WHERE THE PLAINTIFF'S CLAIM IS BASED  UPON  A  NOTE  EVIDENCING  A
"HOME  LOAN"  AS DEFINED IN SUBDIVISION FIVE OF SECTION THIRTEEN HUNDRED
FOUR OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW.
  S 2. This act shall take effect on the first of January next  succeed-
ing the date on which it shall have become a law.