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Some Pitfalls of Moving for Summary Judgment in Lieu of Complaint

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  • Posted on: Sep 4 2020

Rule 3213 of the CPLR – which permits a litigant to move for summary judgment in lieu of filing a complaint – was designed to streamline litigation in situations where the statute is applicable, provides:

When an action is based upon an instrument for the payment of money only or upon any judgment, the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint. The summons served with such motion papers shall require the defendant 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 therefor, 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. 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.

The Court of Appeals has described CPLR 3213 as a procedural device that “for the limited matters within its embrace, melded pleading and motion practice into one step, allowing a summary judgment motion to be made before issue was joined.”  Weissman v. Sinorm Deli, Inc., 88 N.Y.2d 437, 443 (1996).  The provision is “intended to provide a speedy and effective means of securing a judgment on claims presumptively meritorious … [and where] a formal complaint is superfluous and even the delay incident upon waiting for an answer and then moving for summary judgment is needless.”  Interman Indus. Products, Ltd. v. R.S.M. Electron Power, Inc., 37 N.Y.2d 151, 154 (1975) (citations and internal quotation marks omitted).  

A litigant can properly utilize CPLR 3213 when an action is “based upon an instrument for the payment of money only.”  Much litigation related to CPLR 3213 is related to what constitutes an “an instrument for the payment of money.”  See, e.g., Cooperatieve Centrale Raiffeisen-Boerenleenbank, B.A. v. Navarro, 25 N.Y.3d 485 (2015) (holding that an “unconditional and absolute” guaranty falls within the purview of CPLR 3213); Interman Indus. Products, Ltd. v. R.S.M. Electron Power, Inc., 37 N.Y.2d 151, 154 (1975) (an account stated does not qualify).  This issue was previously addressed in this Blog [HERE].  

CPLR 3213 provides that the return date of a motion for summary judgment in lieu of complaint shall, at a minimum, be “as provided by subdivision (a) of rule 320 for making an appearance, depending upon the method of service.”  CPLR 320(a) provides:

Requirement of appearance. The defendant appears by serving an answer or a notice of appearance, or by making a motion which has the effect of extending the time to answer. An appearance shall be made within twenty days after service of the summons, except that if the summons was served on the defendant by delivering it to an official of the state authorized to receive service in his behalf or if it was served pursuant to section 303, subdivision two, three, four or five of section 308, or sections 313, 314 or 315, the appearance shall be made within thirty days after service is complete. If the complaint is not served with the summons, the time to appear may be extended as provided in subdivision (b) of section 3012.

Thus, depending on the method of service of the notice of motion for summary judgment in lieu of complaint, defendant’s time to appear could be as little as 20 days, but could be 30 days, 40 days or more depending on when the affidavit of service is filed.  If service is made, for example, on an individual pursuant to CPLR 308(2) or (4) or a partnership pursuant to CPLR 310(b) or (c) a defendant would have 40 days from the time the affidavit of service is filed with the court.  A plaintiff making a motion for summary judgment in lieu of complaint must be careful and conservative about choosing a return date for the motion because at the time the papers are delivered to a process server, it is not known how long service will take and what method of service will be employed by the process server.  As one court noted:

CPLR 3213 is a hybrid procedure incorporating certain elements of an action and certain elements of motion practice. 

As with a plenary action, jurisdiction is obtained over the Defendant by serving the Defendant with the summons, notice of motion and supporting papers in a method prescribed in CPLR Article 3.  The minimum amount of time the Plaintiff must give the Defendant to oppose the motion for summary judgment in lieu of complaint is determined by the amount of time the Defendant would have to appear in the action if the Defendant had been served with a summons and complaint or summons with notice.

Goldstein v. Saltzman, 13 Misc.3d 1023 (2006) (citations omitted).  In Goldstein, the plaintiff gave the “defendant the minimum notice required by statute but demand[ed] answering papers 10 days before the return date”.  The court denied plaintiff’s summary judgment motion without prejudice and dismissed the action because:

CPLR 3213 gives the plaintiff an option; that is, either make the motion returnable as soon as possible and permit the defendant to file its opposition papers on the return date or demand opposition papers in advance and give the defendant additional time in which to oppose the motion. Plaintiff cannot give defendant the minimum amount of time permitted to oppose the motion and demand opposition in advance. Because Goldstein demanded the service of answering papers 10 days prior to the return date of the motion, Saltzman was not provided with the statutorily required time in which to respond.

Where plaintiff fails to provide the defendant with the statutorily required time to respond, the motion should be denied and the action dismissed.

Goldstein, 13 Misc. 3d at 1028 (citations omitted).

On August 20, 2020, the Supreme Court, Kings County (Silber, J.) decided Quicksilver Capital, LLC v. Tea at the Center, Inc., in which the court denied plaintiff’s unopposed motion for summary judgment in lieu of complaint.  The plaintiff in Quicksilver had made a prior motion under CPLR 3213, which was denied due to improper service.  Plaintiff tried again.  The new motion was served on July 8, 2020 and the notice of motion made the return date July 22, 2020.  The notice of motion also demanded that opposition papers be served 10 days in advance of the return date.  “[T]he corporate defendant [in Quicksilver] was served by delivery to a “manager”, the corporation is allowed twenty (20) days to appear, and the individual defendant, served pursuant to CPLR 308(4), is allowed thirty (30) days to appear after such service is complete.”  The court determined that the motion papers were “short served” and, therefore, the motion was denied.  The court, however, stated that the “failure is not jurisdictional, and thus the action does not need to be dismissed.”  Instead, the court ordered “that the notice of motion, the summons and the papers upon which it relies are hereby converted to a summons and complaint pursuant to CPLR 3213” and gave the defendant 30 days from service of the order with notice of entry to answer or move.”

The court also found that denial of the motion was appropriate on the substantive ground that the moving affidavit was not made by someone with first-hand knowledge and the supporting documents were submitted without the appropriate authentication.


CPLR 3213 was designed to streamline actions that fall within its purview.  However, due to the practicalities of proper and timely service, this “benefit” is sometimes illusory.

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