N.Y. Civil Practice Law & Rules § 3212: Motion for summary judgment

Rule 3212. Motion for summary judgment. (a) Time; kind of action. Any

party may move for summary judgment in any action, after issue has been

joined; provided however, that the court may set a date after which no

such motion may be made, such date being no earlier than thirty days

after the filing of the note of issue. If no such date is set by the

court, such motion shall be made no later than one hundred twenty days

after the filing of the note of issue, except with leave of court on

good cause shown.

(b) Supporting proof; grounds; relief to either party. A motion for

summary judgment shall be supported by affidavit, by a copy of the

pleadings and by other available proof, such as depositions and written

admissions. The affidavit shall be by a person having knowledge of the

facts; it shall recite all the material facts; and it shall show that

there is no defense to the cause of action or that the cause of action

or defense has no merit. Where an expert affidavit is submitted in

support of, or opposition to, a motion for summary judgment, the court

shall not decline to consider the affidavit because an expert exchange

pursuant to subparagraph (i) of paragraph (1) of subdivision (d) of

section 3101 was not furnished prior to the submission of the affidavit.

The motion shall be granted if, upon all the papers and proof submitted,

the cause of action or defense shall be established sufficiently to

warrant the court as a matter of law in directing judgment in favor of

any party. Except as provided in subdivision (c) of this rule the motion

shall be denied if any party shall show facts sufficient to require a

trial of any issue of fact. If it shall appear that any party other than

the moving party is entitled to a summary judgment, the court may grant

such judgment without the necessity of a cross-motion.

(c) Immediate trial. If it appears that the only triable issues of

fact arising on a motion for summary judgment relate to the amount or

extent of damages, or if the motion is based on any of the grounds

enumerated in subdivision (a) or (b) of rule 3211, the court may, when

appropriate for the expeditious disposition of the controversy, order an

immediate trial of such issues of fact raised by the motion, before a

referee, before the court, or before the court and a jury, whichever may

be proper.

(e) Partial summary judgment; severance. In a matrimonial action

summary judgment may not be granted in favor of the non-moving party. In

any other action summary judgment may be granted as to one or more

causes of action, or part thereof, in favor of any one or more parties,

to the extent warranted, on such terms as may be just. The court may

also direct:

1. that the cause of action as to which summary judgment is granted

shall be severed from any remaining cause of action; or

2. that the entry of the summary judgment shall be held in abeyance

pending the determination of any remaining cause of action.

(f) Facts unavailable to opposing party. Should it appear from

affidavits submitted in opposition to the motion that facts essential to

justify opposition may exist but cannot then be stated, the court may

deny the motion or may order a continuance to permit affidavits to be

obtained or disclosure to be had and may make such other order as may be

just.

(g) Limitation of issues of fact for trial. If a motion for summary

judgment is denied or is granted in part, the court, by examining the

papers before it and, in the discretion of the court, by interrogating

counsel, shall, if practicable, ascertain what facts are not in dispute

or are incontrovertible. It shall thereupon make an order specifying

such facts and they shall be deemed established for all purposes in the

action. The court may make any order as may aid in the disposition of

the action.

(h) Standards for summary judgment in certain cases involving public

petition and participation. A motion for summary judgment, in which the

moving party has demonstrated that the action, claim, cross claim or

counterclaim subject to the motion is an action involving public

petition and participation, as defined in paragraph (a) of subdivision

one of section seventy-six-a of the civil rights law, shall be granted

unless the party responding to the motion demonstrates that the action,

claim, cross claim or counterclaim has a substantial basis in fact and

law or is supported by a substantial argument for an extension,

modification or reversal of existing law. The court shall grant

preference in the hearing of such motion.

(i) Standards for summary judgment in certain cases involving licensed

architects, engineers, land surveyors or landscape architects. A motion

for summary judgment, in which the moving party has demonstrated that

the action, claim, cross claim or counterclaim subject to the motion is

an action in which a notice of claim must be served on a licensed

architect, engineer, land surveyor or landscape architect pursuant to

the provisions of subdivision one of section two hundred fourteen of

this chapter, shall be granted unless the party responding to the motion

demonstrates that a substantial basis in fact and in law exists to

believe that the performance, conduct or omission complained of such

licensed architect, engineer, land surveyor or landscape architect or

such firm as set forth in the notice of claim was negligent and that

such performance, conduct or omission was a proximate cause of personal

injury, wrongful death or property damage complained of by the claimant

or is supported by a substantial argument for an extension, modification

or reversal of existing law. The court shall grant a preference in the

hearing of such motion.

(j) Additional notice in any action to collect a debt arising out of a

consumer credit transaction where a consumer is a defendant.

1. At the time of service of a notice of motion any part of which

requests summary judgment in whole or in part, where the moving party is

a plaintiff and the respondent is a consumer defendant in an action to

collect a debt arising out of a consumer credit transaction, and where

the consumer defendant against whom summary judgment is sought is not

represented by an attorney, the plaintiff shall submit to the clerk a

stamped, unsealed envelope addressed to the defendant together with the

following additional notice in English and Spanish to be printed in

clear type no less than twelve-point in size:

IMPORTANT NOTICE

The Plaintiff has asked the Court to enter judgment against you by

making a Motion for Summary Judgment. Keep this Notice and the envelope

it came in. The Motion for Summary Judgment was separately served on

you. To avoid entry of judgment:

(1) You must appear in court as directed below:

WHERE: Name of Court, Street Address, Room Number

WHEN: Date and time

(2) You should oppose the motion IN WRITING.

HOW TO OPPOSE THE MOTION:

(1) State the legal reasons why the court should not enter judgment

against you, including your defenses.

(2) State the facts that support your defenses.

(3) Attach affidavits and/or exhibits to support the facts you assert.

(a) Affidavits are sworn statements of witnesses (including you) who

state facts they know to be true. The affidavit should state the facts

and how the witness knows them. Also, the affidavit should explain any

exhibits. An affidavit of service is an affidavit that states how and

when papers were served. An affidavit must be signed in front of a

notary. Free forms are available on the New York State Court system

website at: ____________________.

(b) Exhibits are copies of documents. Exhibits are usually attached to

affidavits.

(4) Have someone (not you or another defendant in the lawsuit) mail a

copy of your opposition to the plaintiff's attorney before your court

date and have them prepare an affidavit of service by mail.

(5) Bring a copy of your opposition and the affidavit of service to

your court date.

(6) Attend your court date.

IF YOU NEED MORE TIME:

If you need more time to prepare your written response, you should

appear at your court date and ask the judge for more time. You can also

ask the judge to refer you for legal help.

IF YOU NEED LEGAL HELP:

You may seek legal help from a private attorney or a legal aid office.

Some courts have free legal assistance programs for people without

lawyers. You can find resources on the New York State court system

website at: ____________________.

2. The clerk promptly shall mail to the defendant the envelope

containing the additional notice set forth in paragraph one of this

subdivision and note the date of mailing in the case record. Summary

judgment shall not be entered based on defendant's failure to oppose the

motion unless there has been compliance with this section and at least

fourteen days have elapsed from the date of mailing by the clerk or

nineteen days if the plaintiff's notice of motion demands additional

time under subdivision (b) of rule 2214 of this chapter.

3. The chief administrative judge shall issue a Spanish translation of

the notice in paragraph one of this subdivision and shall maintain and

publish the URL address for the web page containing consumer credit

resources for unrepresented litigants.