Can you assert a CPLR 3213 motion for summary judgment in lieu of complaint as a counterclaim?
CPLR 3213 permits the use of a motion for summary judgment in lieu of a complaint where an action is based upon an instrument for the payment of money only, such as a promissory note, or upon any judgment.
It allows a plaintiff to avoid what is usually a protracted and costly pleading and discovery process, and a trial, in favor of a prompt resolution on what should be a straightforward issue, i.e., collection on the instrument of payment.
While this provision of the CPLR is primarily invoked by a plaintiff in possession of an original promissory note, this provision may also be used by a defendant in lieu of a counterclaim.
Perhaps a defendant has been sued, yet holds a promissory note in his favor and executed by the plaintiff. Such defendant may seek the same relief as a plaintiff in the same position, i.e., a motion for summary judgment in lieu of a counterclaim. Acorn v. Kiley, 193 A.D.2d 397, 597 N.Y.S.2d 63 (1st Dept. 1993). If successful, the counterclaim moving defendant, will obtain the same benefits as a would-be plaintiff, i.e., accelerated relief on his counterclaim for payment.
Even though asserting a CPLR 3213 motion for summary judgment in lieu of counterclaim is permissible, it is not without risks. If the counterclaimant happens to lose the motion for summary judgment in lieu of counterclaim, there is a risk that those claims – which would have otherwise been asserted as counterclaims in your answer, along with affirmative defenses - may be barred. See Schulz v. Barrows, 94 N.Y.2d 624, 730 N.E.2d 946, 709 N.Y.S.2d 148 (2000).
In order to hedge against this possibility, the counterclaiming movant would need to request alternative relief, i.e., request of the court in the motion papers, in the event the motion is denied, to convert the motion into an answer with counterclaims and affirmative defenses and give movant the chance to amend the same. Id. However, even then, there is no absolute guarantee that the court will grant such alternative relief.
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