2021 New York Laws :: CVP - Civil Practice Law and Rules :: Article 32 - Accelerated Judgment :: R3212 - Motion for Summary Judgment. (2023)

Rule 3212. Motion for summary judgment. (a) Time; kind of action. Anyparty may move for summary judgment in any action, after issue has beenjoined; provided however, that the court may set a date after which nosuch motion may be made, such date being no earlier than thirty daysafter the filing of the note of issue. If no such date is set by thecourt, such motion shall be made no later than one hundred twenty daysafter the filing of the note of issue, except with leave of court ongood cause shown.

(b) Supporting proof; grounds; relief to either party. A motion forsummary judgment shall be supported by affidavit, by a copy of thepleadings and by other available proof, such as depositions and writtenadmissions. The affidavit shall be by a person having knowledge of thefacts; it shall recite all the material facts; and it shall show thatthere is no defense to the cause of action or that the cause of actionor defense has no merit. Where an expert affidavit is submitted insupport of, or opposition to, a motion for summary judgment, the courtshall not decline to consider the affidavit because an expert exchangepursuant to subparagraph (i) of paragraph (1) of subdivision (d) ofsection 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 towarrant the court as a matter of law in directing judgment in favor ofany party. Except as provided in subdivision (c) of this rule the motionshall be denied if any party shall show facts sufficient to require atrial of any issue of fact. If it shall appear that any party other thanthe moving party is entitled to a summary judgment, the court may grantsuch judgment without the necessity of a cross-motion.

(c) Immediate trial. If it appears that the only triable issues offact arising on a motion for summary judgment relate to the amount orextent of damages, or if the motion is based on any of the groundsenumerated in subdivision (a) or (b) of rule 3211, the court may, whenappropriate for the expeditious disposition of the controversy, order animmediate trial of such issues of fact raised by the motion, before areferee, before the court, or before the court and a jury, whichever maybe proper.

(e) Partial summary judgment; severance. In a matrimonial actionsummary judgment may not be granted in favor of the non-moving party. Inany other action summary judgment may be granted as to one or morecauses 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 mayalso direct: 1. that the cause of action as to which summary judgment is grantedshall be severed from any remaining cause of action; or 2. that the entry of the summary judgment shall be held in abeyancepending the determination of any remaining cause of action.

(f) Facts unavailable to opposing party. Should it appear fromaffidavits submitted in opposition to the motion that facts essential tojustify opposition may exist but cannot then be stated, the court maydeny the motion or may order a continuance to permit affidavits to beobtained or disclosure to be had and may make such other order as may bejust.

(g) Limitation of issues of fact for trial. If a motion for summaryjudgment is denied or is granted in part, the court, by examining thepapers before it and, in the discretion of the court, by interrogatingcounsel, shall, if practicable, ascertain what facts are not in disputeor are incontrovertible. It shall thereupon make an order specifyingsuch facts and they shall be deemed established for all purposes in theaction. The court may make any order as may aid in the disposition ofthe action.

(h) Standards for summary judgment in certain cases involving publicpetition and participation. A motion for summary judgment, in which themoving party has demonstrated that the action, claim, cross claim orcounterclaim subject to the motion is an action involving publicpetition and participation, as defined in paragraph (a) of subdivisionone of section seventy-six-a of the civil rights law, shall be grantedunless the party responding to the motion demonstrates that the action,claim, cross claim or counterclaim has a substantial basis in fact andlaw or is supported by a substantial argument for an extension,modification or reversal of existing law. The court shall grantpreference in the hearing of such motion.

(i) Standards for summary judgment in certain cases involving licensedarchitects, engineers, land surveyors or landscape architects. A motionfor summary judgment, in which the moving party has demonstrated thatthe action, claim, cross claim or counterclaim subject to the motion isan action in which a notice of claim must be served on a licensedarchitect, engineer, land surveyor or landscape architect pursuant tothe provisions of subdivision one of section two hundred fourteen ofthis chapter, shall be granted unless the party responding to the motiondemonstrates that a substantial basis in fact and in law exists tobelieve that the performance, conduct or omission complained of suchlicensed architect, engineer, land surveyor or landscape architect orsuch firm as set forth in the notice of claim was negligent and thatsuch performance, conduct or omission was a proximate cause of personalinjury, wrongful death or property damage complained of by the claimantor is supported by a substantial argument for an extension, modificationor reversal of existing law. The court shall grant a preference in thehearing of such motion. * (j) Additional notice in any action to collect a debt arising out ofa consumer credit transaction where a consumer is a defendant. 1. At the time of service of a notice of motion any part of whichrequests summary judgment in whole or in part, where the moving party isa plaintiff and the respondent is a consumer defendant in an action tocollect a debt arising out of a consumer credit transaction, and wherethe consumer defendant against whom summary judgment is sought is notrepresented by an attorney, the plaintiff shall submit to the clerk astamped, unsealed envelope addressed to the defendant together with thefollowing additional notice in English and Spanish to be printed inclear type no less than twelve-point in size: IMPORTANT NOTICEThe Plaintiff has asked the Court to enter judgment against you bymaking a Motion for Summary Judgment. Keep this Notice and the envelopeit came in. The Motion for Summary Judgment was separately served onyou. To avoid entry of judgment:(1) You must appear in court as directed below:WHERE: Name of Court, Street Address, Room NumberWHEN: 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 judgmentagainst 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) whostate facts they know to be true. The affidavit should state the factsand how the witness knows them. Also, the affidavit should explain anyexhibits. An affidavit of service is an affidavit that states how andwhen papers were served. An affidavit must be signed in front of anotary. Free forms are available on the New York State Court systemwebsite at: ____________________.

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

(4) Have someone (not you or another defendant in the lawsuit) mail acopy of your opposition to the plaintiff's attorney before your courtdate and have them prepare an affidavit of service by mail.

(5) Bring a copy of your opposition and the affidavit of service toyour court date.

(6) Attend your court date.IF YOU NEED MORE TIME:If you need more time to prepare your written response, you shouldappear at your court date and ask the judge for more time. You can alsoask 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 withoutlawyers. You can find resources on the New York State court systemwebsite at: ____________________. 2. The clerk promptly shall mail to the defendant the envelopecontaining the additional notice set forth in paragraph one of thissubdivision and note the date of mailing in the case record. Summaryjudgment shall not be entered based on defendant's failure to oppose themotion unless there has been compliance with this section and at leastfourteen days have elapsed from the date of mailing by the clerk ornineteen days if the plaintiff's notice of motion demands additionaltime under subdivision (b) of rule 2214 of this chapter. 3. The chief administrative judge shall issue a Spanish translation ofthe notice in paragraph one of this subdivision and shall maintain andpublish the URL address for the web page containing consumer creditresources for unrepresented litigants. * NB Effective May 7, 2022

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