S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5442
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 9, 2017
                                ___________
 
 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:
   § 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.
                                                            LBD09459-01-7

 A. 5442                             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.
   § 2. This act shall take effect on the first of January next  succeed-
 ing the date on which it shall have become a law.