2023 New York Laws › CVP - Civil Practice Law and Rules › Article 32 - Accelerated Judgment › R3212 - 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.