CPLR § 3213 Motion for summary judgment in lieu of complaint
Dyck-o'Neal, Inc. v Thomson, 2008 NY Slip Op 09208 (App. Div., 4th)
The record establishes that defendants executed a promissory note and mortgage in August 1986 pursuant to which they agreed to make monthly payments to plaintiff's predecessor. Defendants failed to make the requisite monthly payments beginning in June 2000, however, and plaintiff's predecessor commenced a foreclosure action in November 2000. The mortgage was assigned to a third party and thereafter was assigned to plaintiff, in November 2002. Plaintiff commenced this action pursuant to CPLR 3213 in June 2006, and the court denied plaintiff's motion for summary judgment in lieu of complaint in August 2006. Plaintiff made a second [*2]motion for summary judgment in lieu of complaint in March 2007, and defendants cross-moved to dismiss the action contending, inter alia, that the action was time-barred and that plaintiff failed to comply with RPAPL 1301. The court denied plaintiff's second motion and granted defendants' cross motions to dismiss on the ground that plaintiff's second motion was made after the six-year statute of limitations had expired (see CPLR 213 [4]). That was error. When a court denies a motion for summary judgment in lieu of complaint, "the moving and answering papers shall be deemed the complaint and answer, respectively, unless the court orders otherwise" (CPLR 3213). Although "the court's authority to order otherwise' include[s] discretion to dismiss [the action]" (Schulz v Barrows, 94 NY2d 624, 626), the court took no such action here with respect to plaintiff's June 2006 motion. Instead, by its August 2006 order, the court merely denied plaintiff's motion. Thus, plaintiff's June 2006 motion papers were converted to a complaint pursuant to the express terms ofCPLR 3213, and the March 2007 motion should have been treated as a motion for summary judgment within the existing June 2006 action, which was timely commenced (see generally Schulz v Barrows, 263 AD2d 565, 571, affd 94 NY2d 624).
All the bold is mine.
