What is a CPLR 3213 motion, and why do guarantors get sued this way?

This page explains New York law under the Civil Practice Law and Rules (CPLR). Of all the ways a lender can sue, a CPLR 3213 motion moves fastest, and the first deadline can arrive within weeks of service. KOR Law LLP's debtor and creditor practice represents guarantors, borrowers and lenders on these motions. For the defenses a guarantor may have on the merits, see what defenses a personal guarantor has when a New York lender sues.

Why does New York allow a lawsuit without a complaint?

The Court of Appeals has explained that CPLR 3213 was enacted "to provide quick relief on documentary claims so presumptively meritorious that a formal complaint is superfluous, and even the delay incident upon waiting for an answer and then moving for summary judgment is needless" (Navarro, 2015, quoting Weissman v Sinorm Deli, 1996). In other words, the law assumes the document speaks for itself: a signed promise to pay a sum of money, a default, and nothing more to prove. That is also the main limit on the procedure. If the claim needs proof outside the document, the motion may not be the right vehicle.

A guaranty of payment can fit. In Navarro the lender sued the guarantor by summons and CPLR 3213 motion, and the Court of Appeals described the lender's burden as proving "the existence of the guaranty, the underlying debt and the guarantor's failure to perform," after which the burden shifts to the guarantor to show a triable issue on a genuine defense.

How does a CPLR 3213 case run, step by step?

1. Service. You receive a summons with a notice of motion for summary judgment and supporting papers, usually an affidavit from the lender, the note or guaranty, and proof of default (CPLR 3213).
2. The return date. The notice of motion sets a hearing date. The summons must require you to submit answering papers within the time the notice of motion provides (CPLR 3213).
3. Minimum notice. The hearing date cannot be earlier than the time you would have to appear in an ordinary case, which depends on how you were served (CPLR 3213, 320(a); see the table below).
4. Early opposition deadline. If the lender sets the hearing date later than the minimum, it may require your answering papers up to ten days before the hearing date (CPLR 3213). Check the notice for that demand.
5. No default before the hearing. No default judgment may be entered under CPLR 3215(a) before the hearing date of the motion (CPLR 3213).
6. Decision. If the court grants the motion, judgment is entered. If it denies it, the moving and answering papers are deemed the complaint and the answer, unless the court orders otherwise, and the case proceeds (CPLR 3213).

The same service rules decide the deadline to answer a foreclosure complaint, and they are explained in more detail in how long you have to answer a foreclosure complaint in New York.

Which documents qualify as an "instrument for the payment of money only"?

The statute does not list them. It covers an action "based upon an instrument for the payment of money only or upon any judgment" (CPLR 3213). Examples of claims brought this way:

• Promissory notes. A signed promise to pay a stated sum.
• Guaranties of payment. As in Navarro, where the court treated the guaranty claim under CPLR 3213 and decided it on the guaranty's terms.
• Judgments. A judgment from another court can be the basis of a 3213 motion, including a confessed judgment from another state, which cannot be filed under New York's simpler procedure (CPLR 5401); see whether a confession of judgment is enforceable in New York. That is one of the routes for a judgment from outside New York, discussed in whether a judgment from another state or a federal court can be enforced in New York.

Whether a particular guaranty qualifies depends on its terms. A guaranty whose obligation turns on events or performance that must be proved with outside evidence fits the procedure less comfortably than an unconditional promise to pay, and that mismatch is one of the first things to examine when a 3213 motion arrives.

How do you oppose the motion?

Opposition is a set of papers, not a short answer form. It typically includes an affidavit from you, with the documents you rely on, and a memorandum of law. The aim is one of three things:

• Show the procedure does not fit. The instrument is not one for the payment of money only, so the motion should be denied and the case should proceed as an ordinary action (CPLR 3213).
• Show the lender has not made its case. The lender must prove the guaranty, the underlying debt and your failure to perform (Navarro). Gaps in the payment history, the default notices or the amount claimed matter.
• Show a triable issue on a genuine defense. With admissible evidence, not just denials. Keep in mind that an "absolute and unconditional" guaranty bars many defenses (Navarro).

Because a 3213 motion is a motion for summary judgment, you can also point to CPLR 3212(f), which lets a court deny a summary judgment motion or order a continuance when affidavits show that facts essential to justify opposition may exist but cannot yet be stated, so that disclosure can be had.

What changes the answer?

• The document. Only an instrument for the payment of money only, or a judgment, supports the procedure (CPLR 3213).
• The waiver clause. Absolute and unconditional language narrows the defenses a guarantor can raise (Navarro).
• How and when you were served. The minimum notice depends on the method of service (CPLR 320(a), 308).
• The notice of motion's demand. A later hearing date can come with an earlier deadline for your papers, up to ten days before the hearing (CPLR 3213).
• Consumer debts. In an action to collect a consumer credit debt from an unrepresented consumer, the extra mailed notice required by CPLR 3212(j) applies to a 3213 motion too (CPLR 3213), and summary judgment cannot be entered on default without it.
• Age of the claim. A contract claim generally must be brought within six years (CPLR 213(2)); see how long a lender has to sue on a note or guaranty in New York.

For example: a motion served by "nail and mail"

Common mistakes

• Treating it like a regular summons. There is no complaint to answer; the response is opposition papers by the date in the notice of motion.
• Missing the early deadline. If the notice demands papers before the hearing, that date controls (CPLR 3213).
• Filing bare denials. The guarantor must show a triable issue with admissible evidence (Navarro).
• Raising waived defenses only. Under absolute and unconditional language, arguments like fraudulent inducement may be barred (Navarro, describing Citibank v Plapinger).
• Ignoring a related foreclosure. If the debt is secured by a mortgage, check whether the lender needed leave of the foreclosure court before suing (RPAPL 1301(3)); see whether a lender can sue on the note and foreclose at the same time. A later deficiency claim has its own rules, in deficiency judgments after a New York foreclosure sale.
• Assuming a loss ends it. A judgment can still be challenged on the grounds in CPLR 5015, though within limits; see whether you can undo a default judgment in New York.

What to do this week

1. Write down the date and method of service, and when proof of service was filed if it was not hand delivery.
2. Find the hearing date and any demand for answering papers before it.
3. Gather the note or guaranty, every amendment, and every default and acceleration letter.
4. Compare the lender's affidavit and payment history with your own records.
5. List what you would need from the lender to oppose (payment histories, servicing notes, amendment drafts).
6. Retain counsel early enough to prepare affidavits and exhibits before the opposition date.

Frequently asked questions

Do I have to file an answer to a CPLR 3213 motion?

No answer is due while the motion is pending. You respond with answering papers on the motion within the time the notice of motion provides. If the motion is denied, your answering papers are deemed your answer unless the court orders otherwise (CPLR 3213).

Can the lender get a default judgment if I miss the date?

No default judgment under CPLR 3215(a) may be entered before the hearing date (CPLR 3213). On the hearing date, an unopposed motion can be granted on the lender's papers, so the date matters.

Can I ask for more time?

You can ask the lender's attorney for an adjournment and, failing that, ask the court. Get any agreed adjournment in writing, and check whether it also moves the deadline for your papers.

What happens after the court grants the motion?

Judgment is entered and the lender can enforce it with restraining notices, levies and income executions. If your bank account is frozen, see what you can do about a restraining notice on your New York bank account.

Can a lender use CPLR 3213 for a loan agreement with many conditions?

The procedure is limited to an instrument for the payment of money only, or a judgment (CPLR 3213). A lengthy loan agreement whose payment terms depend on other obligations may not qualify, which is a reason to examine the exact document sued on.

Is a CPLR 3213 motion used against borrowers too, or only guarantors?

Both. A note signed by a borrower can qualify as readily as a guaranty. Guarantors see it often because a guaranty of payment is a short, signed promise that the lender can present on its own. How a commercial default usually unfolds before suit is in what happens after a lender declares a commercial loan in default.