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. ĬPLR 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: This issue was previously addressed in this Blog. Electron Power, Inc., 37 N.Y.2d 151, 154 (1975) (an account stated does not qualify). Navarro, 25 N.Y.3d 485 (2015) (holding that an “unconditional and absolute” guaranty falls within the purview of CPLR 3213) Interman Indus. Electron Power, Inc., 37 N.Y.2d 151, 154 (1975) (citations and internal quotation marks omitted).Ī 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. The provision is “intended to provide a speedy and effective means of securing a judgment on claims presumptively meritorious … 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. 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. If the motion is denied, the moving and answering papers shall be deemed the complaint and answer, respectively, unless the court orders otherwise. No default judgment may be entered pursuant to subdivision (a) of section 3215 prior to the hearing date of the motion. 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. 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. 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. 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. 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: Some Pitfalls of Moving for Summary Judgment in Lieu of Complaint Print Article Anti-Retaliation Under The SEC And CFTC Whistleblower Programs.The Confidentiality Protections Under The SEC/CFTC Whistleblower Program.The Whistleblower’s Information Must Lead To a Successful Enforcement Action.The Whistleblower Must Voluntarily Provide Original Information.The Process of Submitting A Whistleblower Claim.Eligibility Under The IRS Whistleblower Program.The Anti-Retaliation Provisions Of The False Claims Act.What to Expect When Blowing The Whistle.
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