Expedited Judgment: CPLR 3213; 3222

• Author: Michael H. Barr/Burton N. Lipshie/Sharon Stern Gerstman
• Pages: 365-380

Chapter 38

EXPEDITED JUDGMENT:

CPLR 3213; 3222

QUICK VIEW

Definitions:

• A motion for summary judgment in lieu of complaint is a procedure that enables a party to bring a

simple action based on an instrument or judgment without going through many of the formalities of a

normal civil action.

• An action on submitted facts is a simplified form of civil action in which all the parties agree on a

statement of facts and submit it to the court for resolution of the legal issues.

Scope: Rules and techniques applicable to moving for summary judgment in lieu of complaint and commencing

an action on submitted facts, and for opposing or defending them. Requirements for serving and filing.

Strategies and Tactics:

• Become familiar with the pros and cons of these procedures and when their use may be advantageous.

• These procedures may enable you to bypass normal procedures and obtain a speedy judgment, thus

saving much time and money for your client.

• Be aware, however, that these procedures are not suitable for all types of cases. For example, if you

do not prevail on a motion for summary judgment in lieu of complaint, you may encounter statute of

limitations or waiver problems, or at least cost your client more time and money.

Statutes and Rules: CPLR 3213 (Summary judgment in lieu of complaint); CPLR 3222 (action on submitted facts).

Related Topics: Summary Judgment, Ch 37; Special Proceedings, Ch 42; Motions to Dismiss, Ch 36; Default

Judgment, Ch 39.

Forms: See digital access for the following forms:

• Form 38:10, Notice of Motion for Summary Judgment in Lieu of Complaint.

• Form 38:20, Affidavit in Support of Motion for Summary Judgment in Lieu of Complaint.

TABLE OF CONTENTS

I. Summary Judgment in Lieu of Complaint; CPLR 3213

A. Nature and Purpose

§38:01 Expeditious Procedure for Certain Claims

§38:02 Distinguished from Special Proceeding

§38:03 Types of Actions Permitted

NEW YORK CIVIL PRACTICE BEFORE TRIAL 38-2

§38:04 Purposes of CPLR 3213 Actions

§38:05 Useful for Certain Collection Actions

§38:06 Defending a CPLR 3213 Action

B. Requirements for a CPLR 3213 Action

1. ACTION ON AN INSTRUMENT FOR PAYMENT OF MONEY

a. Nature of Required Financial Instrument

§38:20 Promise to Pay Must Be Unconditional

§38:21 Test: Prima Facie Case

§38:22 Court Considers Document as Written

b. Qualifying Instruments

§38:30 Negotiable and Non-Negotiable Instruments

§38:31 Bank Check

§38:32 Guaranty

§38:33 Retail Installment Agreement

§38:34 Premium Finance Agreement

§38:35 Other Agreements for Periodic Payments

§38:36 Letter of Credit

§38:37 Subordinated Loan Agreement

§38:38 Equipment Lease

§38:39 Security Agreement

§38:40 Account Stated Based on Written Agreement

§38:41 Administrative Fine

c. Instruments that Do Not Qualify

§38:50 Account Stated

§38:51 Marital Separation Agreement

§38:52 Real Property Lease

§38:53 Indemnification Agreement

§38:54 Contract of Sale

§38:55 Settlement Agreement

§38:56 Employment Agreements

2. ACTION ON A JUDGMENT

§38:60 Need Not Be a Judgment Solely for Payment of Money

§38:61 Sister-State and Federal Judgments

§38:62 Foreign Country Judgment

§38:63 Sister-State Matrimonial Judgments

C. Procedure

1. PROSECUTING A CPLR 3213 ACTION

§38:70 Checklist: Strategic Considerations for Plaintiff

§38:71 Checklist: Requirements for Motion

§38:72 Checklist: Factual Basis for Entitlement to Relief

§38:73 Copy of Instrument

§38:74 Attorney Fees

§38:75 Procedure for Obtaining Attorney Fees Award

§38:76 Filing

§38:77 Service