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June 26, 2024

New York State's Secret Sauce: Summary Judgment in Lieu of Complaint

Many litigants justifiably become frustrated when their lawsuit seemingly drags on forever. While few lawsuits take a staggering 57 years to complete, like the case of Myra Clark Gaines, the longest recorded litigation in American history, it is no secret that litigation can take months or years.

New York State, of course, is no stranger to lengthy litigation. In a typical New York State lawsuit, the complaint is filed and served, and the defendant(s) is given 20 to 30 days to file a responsive pleading, typically an answer, without accounting for extensions. The parties then typically engage in a lengthy discovery process, which can easily span the better part of a year, before then inching toward filing summary judgment motions, motions that seek to convince the court that a trial is not necessary to try to dispose of the matter short of trial. If a trial becomes necessary, the case gets more protracted. As a result, the average New York State case takes over 12 months from commencement to completion. Many take much longer.

But what if a party has a cut-and-dry case because the defendant failed to pay according to a promissory note or is seeking to enforce a judgment already entered in a different action? Fortunately, New York State practice provides a distinct mechanism to “fast-track” cases without bearing the delay of protracted litigation.

The Tortoise Meets the Hare: CPLR § 3213

CPLR § 3213 is a provision unique to New York State that permits a plaintiff, in certain circumstances, to contemporaneously commence a lawsuit and move for summary judgment. The procedure requires the defendant to respond within the same period of time as though answering a complaint, but rather than engaging in discovery, the parties move straight into the summary judgment phase. If summary judgment is granted, this process cuts out a substantial portion of the timeline and cost of a traditional case. This procedure is available in cases where the plaintiff’s action is based upon either (i) an already existing judgment, such as a foreign judgment, or (ii) an instrument for the payment of money only, such as a promissory note. For obvious reasons, it can be an extraordinary arrow in the quiver of a plaintiff seeking to collect a debt.

If the court denies the plaintiff’s motion in lieu of complaint, the rule provides that the motion papers and opposition may be transformed into a complaint and answer, respectively. In this scenario, the action would proceed into discovery like a standard lawsuit but with the bonus that there already has been judicial intervention and there likely would be an expedited discovery schedule as a result. It is critical to note, however, that the procedural mechanism for the conversion from summary judgment to complaint and answer occurs “unless the court orders otherwise.”

Avoiding Potential Pitfalls

Traveling down this procedural avenue is not without risk. The New York State Court of Appeals has even dismissed at least one case in which a plaintiff seeking to utilize this device failed to advise the court that it wanted to pursue the underlying merits of its claim if the motion was denied. As the court noted, although useful, this mechanism has pitfalls when carelessly or too enthusiastically invoked.

Before opting to proceed with litigation via a motion for summary judgment in lieu of complaint, it is also critical to analyze the potential claims and ensure that seeking expedited litigation does not risk losing other possible claims. In certain circumstances, there may be additional, or even more beneficial, procedures to seek expedited relief such as commencing a special proceeding or moving for an order to show cause. A plaintiff must work with a skilled practitioner to make sure all options are considered when planning a litigation strategy and to ensure that, in the zeal to expedite a resolution, substantive rights or other potential advantages are not sacrificed along the way.

CPLR § 3213 can be an efficient way to obtain expedited relief when seeking to enforce judgments or instruments such as promissory notes. As the New York State Court of Appeals has stated, “plaintiffs who choose this accelerated procedure can have relief in record time.” With proper planning and analysis, a well-prepared hare can, in fact, win the race.

The Thought Leadership Committee of Barclay Damon’s Restructuring, Bankruptcy & Creditors’ Rights Practice Area issues alerts and blogs on an ongoing basis to keep clients, colleagues, and friends up to date on important developments in the insolvency space. If you have any questions regarding the content of this alert, please contact the author, Matt Smith, associate, at; Janice Grubin or Jeff Dove, Restructuring, Bankruptcy & Creditors’ Rights Practices Area co-chairs, at and; or Robert Wonneberger, Thought Leadership Committee chair, at

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