Rule 3212. Motion for summary judgment. (a) Time; kind of action. Any
party may move for summary judgment in any action, after issue has been
joined; 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.

(b) Supporting proof; grounds; relief to either party. A motion for
summary judgment shall be supported by affidavit, by a copy of the
pleadings and by other available proof, such as depositions and written
admissions. The affidavit shall be by a person having knowledge of the
facts; it shall recite all the material facts; and it shall show that
there is no defense to the cause of action or that the cause of action
or defense has no merit. Where an expert affidavit is submitted in
support of, or opposition to, a motion for summary judgment, the court
shall not decline to consider the affidavit because an expert exchange
pursuant to subparagraph (i) of paragraph (1) of subdivision (d) of
section 3101 was not furnished prior to the submission of the affidavit.
The motion shall be granted if, upon all the papers and proof submitted,
the cause of action or defense shall be established sufficiently to
warrant the court as a matter of law in directing judgment in favor of
any party. Except as provided in subdivision (c) of this rule the motion
shall be denied if any party shall show facts sufficient to require a
trial of any issue of fact. If it shall appear that any party other than
the moving party is entitled to a summary judgment, the court may grant
such judgment without the necessity of a cross-motion.

(c) Immediate trial. If it appears that the only triable issues of
fact arising on a motion for summary judgment relate to the amount or
extent of damages, or if the motion is based on any of the grounds
enumerated in subdivision (a) or (b) of rule 3211, the court may, when
appropriate for the expeditious disposition of the controversy, order an
immediate trial of such issues of fact raised by the motion, before a
referee, before the court, or before the court and a jury, whichever may
be proper.

(e) Partial summary judgment; severance. In a matrimonial action
summary judgment may not be granted in favor of the non-moving party. In
any other action summary judgment may be granted as to one or more
causes of action, or part thereof, in favor of any one or more parties,
to the extent warranted, on such terms as may be just. The court may
also direct:

1. that the cause of action as to which summary judgment is granted
shall be severed from any remaining cause of action; or

2. that the entry of the summary judgment shall be held in abeyance
pending the determination of any remaining cause of action.

(f) Facts unavailable to opposing party. Should it appear from
affidavits submitted in opposition to the motion that facts essential to
justify opposition may exist but cannot then be stated, the court may
deny the motion or may order a continuance to permit affidavits to be
obtained or disclosure to be had and may make such other order as may be
just.

(g) Limitation of issues of fact for trial. If a motion for summary
judgment is denied or is granted in part, the court, by examining the
papers before it and, in the discretion of the court, by interrogating
counsel, shall, if practicable, ascertain what facts are not in dispute
or are incontrovertible. It shall thereupon make an order specifying
such facts and they shall be deemed established for all purposes in the
action. The court may make any order as may aid in the disposition of
the action.

(h) Standards for summary judgment in certain cases involving public
petition and participation. A motion for summary judgment, in which the
moving party has demonstrated that the action, claim, cross claim or
counterclaim subject to the motion is an action involving public
petition and participation, as defined in paragraph (a) of subdivision
one of section seventy-six-a of the civil rights law, shall be granted
unless the party responding to the motion demonstrates that the action,
claim, cross claim or counterclaim has a substantial basis in fact and
law or is supported by a substantial argument for an extension,
modification or reversal of existing law. The court shall grant
preference in the hearing of such motion.

(i) Standards for summary judgment in certain cases involving licensed
architects, engineers, land surveyors or landscape architects. A motion
for summary judgment, in which the moving party has demonstrated that
the action, claim, cross claim or counterclaim subject to the motion is
an action in which a notice of claim must be served on a licensed
architect, engineer, land surveyor or landscape architect pursuant to
the provisions of subdivision one of section two hundred fourteen of
this chapter, shall be granted unless the party responding to the motion
demonstrates that a substantial basis in fact and in law exists to
believe that the performance, conduct or omission complained of such
licensed architect, engineer, land surveyor or landscape architect or
such firm as set forth in the notice of claim was negligent and that
such performance, conduct or omission was a proximate cause of personal
injury, wrongful death or property damage complained of by the claimant
or is supported by a substantial argument for an extension, modification
or reversal of existing law. The court shall grant a preference in the
hearing of such motion.

(j) Additional notice in any action to collect a debt arising out of a
consumer credit transaction where a consumer is a defendant.

1. At the time of service of a notice of motion any part of which
requests summary judgment in whole or in part, where the moving party is
a plaintiff and the respondent is a consumer defendant in an action to
collect a debt arising out of a consumer credit transaction, and where
the consumer defendant against whom summary judgment is sought is not
represented by an attorney, the plaintiff shall submit to the clerk a
stamped, unsealed envelope addressed to the defendant together with the
following additional notice in English and Spanish to be printed in
clear type no less than twelve-point in size:

IMPORTANT NOTICE
The Plaintiff has asked the Court to enter judgment against you by
making a Motion for Summary Judgment. Keep this Notice and the envelope
it came in. The Motion for Summary Judgment was separately served on
you. To avoid entry of judgment:
(1) You must appear in court as directed below:
WHERE: Name of Court, Street Address, Room Number
WHEN: Date and time
(2) You should oppose the motion IN WRITING.
HOW TO OPPOSE THE MOTION:

(1) State the legal reasons why the court should not enter judgment
against you, including your defenses.

(2) State the facts that support your defenses.

(3) Attach affidavits and/or exhibits to support the facts you assert.

(a) Affidavits are sworn statements of witnesses (including you) who
state facts they know to be true. The affidavit should state the facts
and how the witness knows them. Also, the affidavit should explain any
exhibits. An affidavit of service is an affidavit that states how and
when papers were served. An affidavit must be signed in front of a
notary. Free forms are available on the New York State Court system
website at: ____________________.

(b) Exhibits are copies of documents. Exhibits are usually attached to
affidavits.

(4) Have someone (not you or another defendant in the lawsuit) mail a
copy of your opposition to the plaintiff's attorney before your court
date and have them prepare an affidavit of service by mail.

(5) Bring a copy of your opposition and the affidavit of service to
your court date.

(6) Attend your court date.
IF YOU NEED MORE TIME:
If you need more time to prepare your written response, you should
appear at your court date and ask the judge for more time. You can also
ask the judge to refer you for legal help.
IF YOU NEED LEGAL HELP:
You may seek legal help from a private attorney or a legal aid office.
Some courts have free legal assistance programs for people without
lawyers. You can find resources on the New York State court system
website at: ____________________.

2. The clerk promptly shall mail to the defendant the envelope
containing the additional notice set forth in paragraph one of this
subdivision and note the date of mailing in the case record. Summary
judgment shall not be entered based on defendant's failure to oppose the
motion unless there has been compliance with this section and at least
fourteen days have elapsed from the date of mailing by the clerk or
nineteen days if the plaintiff's notice of motion demands additional
time under subdivision (b) of rule 2214 of this chapter.

3. The chief administrative judge shall issue a Spanish translation of
the notice in paragraph one of this subdivision and shall maintain and
publish the URL address for the web page containing consumer credit
resources for unrepresented litigants.