Proposal to Amend CPLR 3212 (approved 5/4/01)
AN ACT to amend the civil practice law and rules in relation to summary judgment
procedure.
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS
FOLLOWS:
Section 1. Subdivision (a) of Rule 3212 of the Civil Practice Law and Rules is amended to read as follows:
(a) Time; kind of action. Any party may move for summary judgment in any action, after issue has been joined or, the plaintiff may move earlier with the permission of the court, as set forth in this subdivision; 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. Before issue has been joined, the Court may, for good cause shown, permit the plaintiff to move for summary judgment by entering order to show cause. The papers in support of any such proposed order to show cause shall include a separate affidavit or affirmation showing why a motion for summary judgment should be permitted to be made prior to joinder of the issue, the status of the case, and the nature and status of any pending motions. Upon receipt of the proposed order to show cause and supporting papers, the court shall afford all parties the opportunity to be heard as to whether the motion should be permitted to proceed prior to joinder of issue by presentation of papers, in person, or, with the consent of the parties, by telephone conference call.
§2 Subdivision (b) of section 5701 is amended to add a new subdivision (4) to read as follows:
4. enters or refuses to enter an order to show cause permitting a motion for summary judgment prior to joinder of issue.
§3 This act shall take effect immediately.
Supporting Memorandum
Presently, CPLR 3212 permits a motion for summary judgment to be brought only after the defendant answers the complaint and issue has been joined. Many practitioners (as well as many courts) have recognized that such a scheme permits the defendant to delay the day of judgment. As currently formulated, joinder of issue may be delayed by motion, inter alia, pursuant to CPLR 3014 (motion to separately state and number allegations); CPLR 3024 (motion to correct pleadings, motion for more definite statement, and motion to strike scandalous matter); and CPLR 3211(a) (motion to dismiss). These motions may be made seriatum. As a consequence, a defendant intent on delaying the joinder of issue can prevent plaintiff from making a summary judgment for a protracted length of time.
There are circumstances in which prompt relief by summary judgment may be appropriate and necessary even prior to the joinder of issue, such as in a declaratory judgment action or in actions where immediate relief is required and where a provisional remedy is inadequate. Under current practice, immediate affirmative relief is often obtained through the form of a preliminary injunction, even though an injunction is not a proper use of that procedural device.
At the same time, the joinder of issue rule does perform an important function of protecting the defendant from an immediate summary judgment motion at the outset of the case and alleviate the court from premature involvement in the case. While such a motion may be appropriate in certain cases, it is not normally an appropriate procedure, and hence, the proposed rule would require that the early motion be brought with the permission of the Court.
The civil procedure of many states, as well as the federal rules, permit summary judgment motions to be made before joinder of issue. The CPLR Committee proposes that pre-joinder motions for summary judgment should be permitted in the appropriate circumstances: where the court has been fully-advised of the merits of the plaintiff’s action and where the defendant’s defense is meritless and is plainly interposed for the purposes of delaying entry of judgment.
Under the new procedure, a motion for summary judgment shall be brought on by order to show cause. Upon the hearing of the order to show cause, the court determines whether it will hear argument on the motion for summary judgment and, if the plaintiff is successful in persuading the court to that end, the court would thereupon entertain the plaintiff’s motion for summary judgment and decide the case "on the merits." This, of course, is a far less liberal approach to plaintiff's motions than is found in other jurisdictions, which permit such motions to be made a set time (often 30 days) after commencement of the action.
The order to show cause permits the defendant an opportunity to be heard on the question of whether a motion for summary judgment is appropriate in the circumstances and whether defendant has a substantive defense on the merits. The order to show cause procedure also permits the defendant the right to make a record and seek appellate review in the event that summary judgment is granted against the defendant. However, the supreme court’s denial of the order to show cause in not appealable as of right, as noted in the proposed amendment of CPLR 5701(b), thus making the supreme court the ultimate arbiter on whether the motion for summary judgment may be brought in the first instance.
With respect to defendant’s motions for summary judgment, there is little need to modify the present rule because a defendant may always answer and move for summary judgment. A defendant who does so, like any other movant for summary judgment, runs the risk that the court will award summary judgment against the movant (after "searching the record"), even without a formal cross-motion.
In sum, the proposed rule permits the plaintiff to bring pre-joinder motions for summary judgment and obtain relief "on the merits," while affording defendants the opportunity to oppose the motion where the defendant’s can substantiate a creditable defense to the action.