§ 3212 — Motion for summary judgment

New York § 3212

• Jurisdiction: New York
• Law CVP: Civil Practice Law & Rules
• Art. 32: Accelerated Judgment

Text

Rule 3212. Motion for summary judgment. (a) Time; kind of action. Any\nparty may move for summary judgment in any action, after issue has been\njoined; provided however, that the court may set a date after which no\nsuch motion may be made, such date being no earlier than thirty days\nafter the filing of the note of issue. If no such date is set by the\ncourt, such motion shall be made no later than one hundred twenty days\nafter the filing of the note of issue, except with leave of court on\ngood cause shown.\n (b) Supporting proof; grounds; relief to either party. A motion for\nsummary judgment shall be supported by affidavit, by a copy of the\npleadings and by other available proof, such as depositions and written\nadmissions. The affidavit shall be by a person having knowledge of the\nfacts; it shall recite all the material facts; and it shall show that\nthere is no defense to the cause of action or that the cause of action\nor defense has no merit. Where an expert affidavit is submitted in\nsupport of, or opposition to, a motion for summary judgment, the court\nshall not decline to consider the affidavit because an expert exchange\npursuant to subparagraph (i) of paragraph (1) of subdivision (d) of\nsection 3101 was not furnished prior to the submission of the affidavit.\nThe motion shall be granted if, upon all the papers and proof submitted,\nthe cause of action or defense shall be established sufficiently to\nwarrant the court as a matter of law in directing judgment in favor of\nany party. Except as provided in subdivision (c) of this rule the motion\nshall be denied if any party shall show facts sufficient to require a\ntrial of any issue of fact. If it shall appear that any party other than\nthe moving party is entitled to a summary judgment, the court may grant\nsuch judgment without the necessity of a cross-motion.\n (c) Immediate trial. If it appears that the only triable issues of\nfact arising on a motion for summary judgment relate to the amount or\nextent of damages, or if the motion is based on any of the grounds\nenumerated in subdivision (a) or (b) of rule 3211, the court may, when\nappropriate for the expeditious disposition of the controversy, order an\nimmediate trial of such issues of fact raised by the motion, before a\nreferee, before the court, or before the court and a jury, whichever may\nbe proper.\n (e) Partial summary judgment; severance. In a matrimonial action\nsummary judgment may not be granted in favor of the non-moving party. In\nany other action summary judgment may be granted as to one or more\ncauses of action, or part thereof, in favor of any one or more parties,\nto the extent warranted, on such terms as may be just. The court may\nalso direct:\n 1. that the cause of action as to which summary judgment is granted\nshall be severed from any remaining cause of action; or\n 2. that the entry of the summary judgment shall be held in abeyance\npending the determination of any remaining cause of action.\n (f) Facts unavailable to opposing party. Should it appear from\naffidavits submitted in opposition to the motion that facts essential to\njustify opposition may exist but cannot then be stated, the court may\ndeny the motion or may order a continuance to permit affidavits to be\nobtained or disclosure to be had and may make such other order as may be\njust.\n (g) Limitation of issues of fact for trial. If a motion for summary\njudgment is denied or is granted in part, the court, by examining the\npapers before it and, in the discretion of the court, by interrogating\ncounsel, shall, if practicable, ascertain what facts are not in dispute\nor are incontrovertible. It shall thereupon make an order specifying\nsuch facts and they shall be deemed established for all purposes in the\naction. The court may make any order as may aid in the disposition of\nthe action.\n (h) Standards for summary judgment in certain cases involving public\npetition and participation. A motion for summary judgment, in which the\nmoving party has demonstrated that the action, claim, cross claim or\ncounterclaim subject to the motion is an action involving public\npetition and participation, as defined in paragraph (a) of subdivision\none of section seventy-six-a of the civil rights law, shall be granted\nunless the party responding to the motion demonstrates that the action,\nclaim, cross claim or counterclaim has a substantial basis in fact and\nlaw or is supported by a substantial argument for an extension,\nmodification or reversal of existing law. The court shall grant\npreference in the hearing of such motion.\n (i) Standards for summary judgment in certain cases involving licensed\narchitects, engineers, land surveyors or landscape architects. A motion\nfor summary judgment, in which the moving party has demonstrated that\nthe action, claim, cross claim or counterclaim subject to the motion is\nan action in which a notice of claim must be served on a licensed\narchitect, engineer, land surveyor or landscape architect pursuant to\nthe provisions of subdivision one of section two hundred fourteen of\nthis chapter, shall be granted unless the party responding to the motion\ndemonstrates that a substantial basis in fact and in law exists to\nbelieve that the performance, conduct or omission complained of such\nlicensed architect, engineer, land surveyor or landscape architect or\nsuch firm as set forth in the notice of claim was negligent and that\nsuch performance, conduct or omission was a proximate cause of personal\ninjury, wrongful death or property damage complained of by the claimant\nor is supported by a substantial argument for an extension, modification\nor reversal of existing law. The court shall grant a preference in the\nhearing of such motion.\n (j) Additional notice in any action to collect a debt arising out of a\nconsumer credit transaction where a consumer is a defendant.\n 1. At the time of service of a notice of motion any part of which\nrequests summary judgment in whole or in part, where the moving party is\na plaintiff and the respondent is a consumer defendant in an action to\ncollect a debt arising out of a consumer credit transaction, and where\nthe consumer defendant against whom summary judgment is sought is not\nrepresented by an attorney, the plaintiff shall submit to the clerk a\nstamped, unsealed envelope addressed to the defendant together with the\nfollowing additional notice in English and Spanish to be printed in\nclear type no less than twelve-point in size:\n IMPORTANT NOTICE\nThe Plaintiff has asked the Court to enter judgment against you by\nmaking a Motion for Summary Judgment. Keep this Notice and the envelope\nit came in. The Motion for Summary Judgment was separately served on\nyou. To avoid entry of judgment:\n(1) You must appear in court as directed below:\nWHERE: Name of Court, Street Address, Room Number\nWHEN: Date and time\n(2) You should oppose the motion IN WRITING.\nHOW TO OPPOSE THE MOTION:\n (1) State the legal reasons why the court should not enter judgment\nagainst you, including your defenses.\n (2) State the facts that support your defenses.\n (3) Attach affidavits and/or exhibits to support the facts you assert.\n (a) Affidavits are sworn statements of witnesses (including you) who\nstate facts they know to be true. The affidavit should state the facts\nand how the witness knows them. Also, the affidavit should explain any\nexhibits. An affidavit of service is an affidavit that states how and\nwhen papers were served. An affidavit must be signed in front of a\nnotary. Free forms are available on the New York State Court system\nwebsite at: ____________________.\n (b) Exhibits are copies of documents. Exhibits are usually attached to\naffidavits.\n (4) Have someone (not you or another defendant in the lawsuit) mail a\ncopy of your opposition to the plaintiff's attorney before your court\ndate and have them prepare an affidavit of service by mail.\n (5) Bring a copy of your opposition and the affidavit of service to\nyour court date.\n (6) Attend your court date.\nIF YOU NEED MORE TIME:\nIf you need more time to prepare your written response, you should\nappear at your court date and ask the judge for more time. You can also\nask the judge to refer you for legal help.\nIF YOU NEED LEGAL HELP:\nYou may seek legal help from a private attorney or a legal aid office.\nSome courts have free legal assistance programs for people without\nlawyers. You can find resources on the New York State court system\nwebsite at: ____________________.\n 2. The clerk promptly shall mail to the defendant the envelope\ncontaining the additional notice set forth in paragraph one of this\nsubdivision and note the date of mailing in the case record. Summary\njudgment shall not be entered based on defendant's failure to oppose the\nmotion unless there has been compliance with this section and at least\nfourteen days have elapsed from the date of mailing by the clerk or\nnineteen days if the plaintiff's notice of motion demands additional\ntime under subdivision (b) of rule 2214 of this chapter.\n 3. The chief administrative judge shall issue a Spanish translation of\nthe notice in paragraph one of this subdivision and shall maintain and\npublish the URL address for the web page containing consumer credit\nresources for unrepresented litigants.\n