Setting Dates on a Motion for Summary Judgment in Lieu of Complaint

New York Law Journal
November 17, 2016

The New York Civil Practice Law and Rules provide an accelerated procedure to enforce "instruments for the payment of money only" and out-of-state judgments, offering plaintiffs the opportunity to save time and money. Under CPLR 3213, plaintiffs can begin an action by filing a summary judgment motion instead of a complaint, and, if successful, can obtain a judgment while avoiding any discovery, often the most expensive phase of litigation.

However, certain procedural rules applicable to CPLR 3213—specifically, those governing return and answering dates—have been a source of confusion to plaintiffs, resulting in the denial of many motions for summary judgment in lieu of complaint. This article seeks to help practitioners avoid this confusion by examining the earliest permissible return and answering dates under the CPLR when various methods of service are used.

As with other motions brought in New York State courts, plaintiffs moving pursuant to CPLR 3213 must choose a return date, on which the motion will be formally presented to the court. This date should be stated in a notice of motion, which is normally among the first papers filed in an action initiated pursuant to CPLR 3213.

The return date cannot be earlier than the date on which the defendant would have to appear in an action commenced by summons and complaint, as provided in CPLR 320(a). Under that rule, the deadline to appear—and accordingly, the earliest return date allowed under CPLR 3213—varies based on the method used to accomplish service of the opening motion papers.

When moving for summary judgment in lieu of complaint, plaintiffs must also select, and state on their notice of motion, the deadline by which the defendant can serve answering papers. Failure to set a valid return date or provide the defendant with enough time to respond can result in dismissal on jurisdictional or other grounds.

Service by Personal Delivery

It is straightforward to calculate the earliest potential return date of a motion for summary judgment in lieu of complaint where it is served by personal delivery within New York. In that case, pursuant to CPLR 320(a), the motion must be returnable at least 20 days after the motion is delivered to the defendant.

Plaintiffs serving their motions by personal delivery should still be careful when choosing a return date. There are many reasons why it might take days, or even weeks, to accomplish service by personal delivery. For example, the defendant might be out of town or otherwise difficult to locate. Plaintiffs who file motion papers in court with a return date only 20 days after the filing risk dismissal if the defendant is not served that day.

Other Methods of Service

Plaintiffs must set a return date of at least 30 days after the completion of service when the following methods are used: (a) delivery to a person of suitable age and discretion and mail pursuant to CPLR 308(2); (b) delivery to an agent for service pursuant to CPLR 308(3); (c) affix and mail pursuant to CPLR 308(4); (d) service in a manner directed by the court pursuant to CPLR 308(5); (e) service outside of New York pursuant to CPLR 313; and (f) delivery to an official of the state authorized to receive service (e.g., the secretary of state as registered agent for a corporation pursuant to Business Corporation Law §306(b)).

Complications selecting a return date might arise because, under the rules governing some of the more common of these methods, it may take several days to complete service. For example, pursuant to CPLR 308(2), service by delivery to a person of suitable age and discretion is complete only 10 days after a proof of service is filed. Because a defendant so served has 30 days to appear, plaintiffs using that method of service must set a return date of at least 40 days after filing their opening motion papers. And, again, because it might take days to deliver the motion papers, it is advisable to select a return date later than 40 days after filing.

Similarly, pursuant to CPLR 308(4), service by affixing and mailing is not complete until 10 days after the filing of a proof of service. Also, in general, plaintiffs cannot use this method unless they first try diligently to serve the defendant by personal delivery or delivery to a person of suitable age and discretion. Usually, this means that plaintiffs must attempt delivery on a number of different days and at different locations before resorting to affixing and mailing. Accordingly, plaintiffs who anticipate using affixing and mailing to serve a motion for summary judgment in lieu of complaint should set a return date significantly later than 40 days after filing their opening motion papers.

In sum, plaintiffs using methods of service referenced in CPLR 320(a) other than personal delivery within New York should carefully review the applicable rules to understand when service will be deemed complete and any other requirements that may affect the timing of service. In setting an appropriate return date, plaintiffs should also bear in mind factual circumstances that may delay the completion of service (e.g., the defendant is on vacation).

Service by Mail or Email

In some cases, especially where a commercial loan is involved, the instrument being sued on may expressly waive the formal service requirements set forth in the CPLR and permit service by, among other methods, mail or email. In Alfred E. Mann Living Trust v. ETIRC Aviation S.a.r.l., the First Department upheld service by email of a motion for summary judgment in lieu of complaint where the defendant had waived formal service and agreed to service by email. 78 A.D.3d 137, 141-42 (1st Dept. 2010).

Few courts have considered the earliest permissible return date where, pursuant to the terms of a contract, service is completed by mail or email. In Gallant Funding v. Tocci, the Supreme Court of Kings County held that where service is made by mail, plaintiffs must set a return date no earlier than 25 days after mailing their motion papers. 34 Misc.3d 1220(A), 5 (Sup. Ct., Kings County 2011). The court reasoned that the earliest return date allowable under CPLR 3213 is 20 days after service, and, pursuant to CPLR 2103(b)(2), five days must be added to any deadline where service is accomplished by mail. But even if this ruling gains wider acceptance, the earliest permissible return date when service is completed by email will remain unclear.

Answering Papers

In addition to setting the return date, CPLR 3213 requires that plaintiffs also select a deadline for the defendant to submit answering papers to a motion for summary judgment in lieu of complaint. Where the earliest permissible return date is chosen, the defendant must be given until the return date to respond.

In many cases, it will be advantageous to receive a copy of the defendant's answering papers before the return date. CPLR 3213 allows plaintiffs to demand answering papers up to 10 days prior to the return date. Reply papers are not expressly permitted by CPLR 3213, but in practice plaintiffs often use this extra time to submit reply papers.

Plaintiffs can never impose a deadline to submit answering papers before the earliest permissible return date. Thus, plaintiffs who want to request answering papers 10 days before the return date must set a return date at least 10 days later than the earliest permissible return date. For example, plaintiffs who intend to accomplish service by delivery to a person of suitable age and discretion can require the defendant to serve answering papers 10 days before the return date only if the return date is at least 50 days after the motion papers are filed.

Once again, in all cases, plaintiffs should consider setting a later return date to protect against difficulties with service. In the case of personal delivery within New York, for instance, plaintiffs who are not sure that service will be complete sooner than five days after the filing of their motion papers should demand that the defendant serve answering papers no sooner than 25 days after the filing, and set a return date of, at most, 10 days later.

Taking Advantage of 3213

Moving for summary judgment in lieu of complaint can be a powerful tool, allowing plaintiffs to save time and economic resources. However, prior to bringing such motions, plaintiffs should make sure to familiarize themselves with the rules governing return dates and answering dates, which can be technical and complicated depending on the circumstances and method of service used. Failure to do so can lead to denial of the motion, or dismissal of the case.

This article was originally published in the 11/17/2016 issue of the New York Law Journal, and can be found here.

Reprinted with permission from the November 16, 2016 edition of the New York Law Journal© 2016 ALM Media Properties, LLC. All rights reserved.  Further duplication without permission is prohibited. – 877-257-3382 -