R 3212.Motion for summary judgment.

In view of the highly successful operation of RCP 113 and 114, this rule makes no change in the present law, except for the provision that the rule shall be applicable in all except marital actions and the addition of subdivisions (f) and (g). Nothing was gained by the former limitation to nine enumerated classes of action. Its only effect was a proliferation of decisions determining whether a borderline action was included within the enumerated nine. While the growth of the rule, in New York as elsewhere, shows the successive addition of actions to which the procedure was thought most appropriate, the modern trend is to abolish the limitation based on type of action entirely. The Federal rules have done so, and England today excludes only a small group of miscellaneous actions. It is safe to assume that motions for summary judgment will not be brought, or will soon be discouraged, in cases where they are not appropriate. This has been the experience in England where, although motor vehicle accident cases are not excluded, only one recorded motion for summary judgment had been brought in such a case as of 1954. See 70 LQ Rev 22 (1954).

The exclusion of marital actions unless one of the grounds specified in rule 3111 is present is dictated not only by their inappropriateness to the summary judgment procedure but also by strong policy considerations. Such actions are also excluded under the proposed Louisiana code of practice. See McMahon, Pleading under the Proposed New Louisiana Code of Practice, 28 Tul L Rev 216, 228 (1954). Although other provisions modeled on the unrestricted Federal rule contain no express exclusion, the few decisions on the point make it doubtful whether summary judgment would ever be granted under them in a marital action. See Baxter v Baxter, 20 NJ Super 554, 90 A2d 529 (Ch 1952); Meisler v Meisler, 4 NJ Super 579, 67 A2d 907 (Ch 1949). The New York policy requiring full proof prevents judgment on the pleadings in marital actions (see CPA §§ 1143, 1150; RCP 283) and, although the decisions do not specify that testimonial proof is required, their tenor indicates that affidavits submitted on a motion for summary judgment might not be sufficient. Thus, it is said that the statute requiring full proof serves to raise an issue as to the material allegations of the complaint ( Schuster v Schuster, 235 App Div 239, 256 NY Supp 550 (2d Dep’t 1932)) and that the proof must be “of a clear and definite, credible, convincing and satisfactory character.” Gabriel v Gabriel, 274 App Div 141, 143, 79 NYS2d 823, 825 (1st Dep’t 1948). In any event, to the extent that summary judgment may be had without affidavits, it is clear that its allowance would run directly against the decisions prohibiting judgment on the pleadings in marital actions.

It would still be open to a defendant to secure a summary judgment in a marital action where his defense is founded upon documentary evidence, such as a judgment or separation agreement. The same result obtained under former rule 113. See Watters v Watters, 259 App Div 611, 19 NYS2d 995 (1st Dep’t 1940); Green v Green, 124 NYS2d 432 (Sup Ct 1953). Policy considerations, however, would preclude such papers as a letter admitting adultery being included as “documentary evidence” within rule 3211.

The procedure for dissolution of a marriage is unique and will be dealt with elsewhere.

Subds (a) through (f) of this rule conform with the provisions of former RCP 113, adopted in 1959, varying from that rule only in minor details of language.

The use of the phrase “cause of action” in this rule is broad enough to include counterclaims, cross-claims and third-party claims. This is the usage throughout the new CPLR.

Subd (f) of this rule did not appear in former rule 113. It is adapted from Federal rule 56(f). See note to CPLR rule 3211(d).

The addition of subd (g) to the former New York law closely follows Federal rule 56(d). In effect, it converts a motion for summary judgment not granted in its entirety into a pre-trial hearing. There is thus provided a flexible means of attaining as much as possible from the proceeding in the way of removing unsubstantial factual questions.

It is recommended that the Civil Practice Law and Rules be amended to permit the entry of summary judgment for the plaintiff or the defendant in a matrimonial action as in any other action.

Under present law no summary judgment or partial summary judgment may be entered in the plaintiff’s favor in a matrimonial action, and summary judgment in the defendant’s favor is permissible only on the basis of documentary evidence or official records which establish a defense.

It is well settled in New York that a summary judgment may be granted only if it appears from the affidavits and other available proof that the issues tendered by the pleadings are not genuine, but mere paper issues devoid of any substance that merits a trial. Whenever there is any reasonable doubt about the facts underlying the controversy, the courts have denied summary relief. In view of this cautious approach, the limitations placed on the use of summary judgment in matrimonial actions appears unwarranted.

The proposed amendment would bring the provisions of CPLR 3212 into harmony with the proposed changes in section 211 of the Domestic Relations Law, discussed below. It is recommended that the amendments to CPLR 3212 and Domestic Relations Law section 211 be incorporated in a single bill.

The Committee recommends an amendment to CPLR 3212(b) to effect a very narrow, but much needed, change in the procedural law concerning the admissibility of expert affidavits in civil summary judgment motions. It would, in effect, legislatively overrule a line of decisions, starting with Construction by Singletree, Inc. v. Lowe, 55 A.D.3d 861, 866 N.Y.S.2d 702 (2d Dep't 2008), and continuing, inter alia, with Garcia v. New York, 98 A.D.3d 857, 951 N.Y.S.2d 2 (1st Dep't 2012), Rivers v. Birnbaum, 102 A.D.3d 26, 953 N.Y.S.2d 232 (2d Dep't 2012), and, most recently, DeSimone v. New York, 2014 NY Slip Op 06667 (1st Dep't 2014). These First and Second Department cases have permitted trial judges, as an exercise of discretion, to decline to consider expert affidavits submitted in support of, or in opposition to, summary judgment motions where the proponent of the affidavit did not serve a CPLR 3101(d)(l)(i) exchange prior to the filing of the note of issue. This measure would amend 3212(b) to expressly allow such an expert affidavit whether or not an expert disclosure was made prior to the submission of the affidavit.

The Committee believes that the Singletree/Rivers holdings (a) impose a temporal requirement for noticing expert witnesses that contravenes the provisions of CPLR 3101(d)(1)(i) and, in effect, precludes otherwise admissible expert testimony, and (b) contravenes the long-standing application of CPLR 3101(d)(1)(i) to the noticing of experts for trial in relation to the date set for trial of an action or proceeding.

Compounding the difficulties practitioners face in navigating the conflicting holdings cited above are the multitude of different Judicial District, County, and individual judges’ rules addressing the timing of expert disclosure, many of which may be at odds with CPLR 3101(d)(l)(i) or which do not require disclosures of expert information before the filing of a notice. Another factor complicating the timing of expert disclosure is the continuing practice in certain counties to permit routine post-note of issue disclosure.

This measure would not alter the circumstances in which expert testimony may be offered. Nor would it alter the rules concerning the admissibility of the reports or data on which the testimony may be premised.

This measure would simply provide that a party's right to submit an expert affidavit in support of, or in opposition to a summary judgment motion would not be affected by whether or not the party made disclosure of the expert before submitting the affidavit is designed to aid in establishing uniformity in practice state-wide, reducing confusion among members of the bench and bar as to the timing of expert disclosure, and making certain that where expert testimony is required or desired in support or opposition to a summary motion, the functional equivalent of a trial, that parties have the same latitude to utilize expert testimony as they ·do at trial.

Add, L 1962, ch 308, eff Sept 1, 1963; amd, L 1963, ch 533, § 1, eff Sept 1, 1963; L 1965, ch 773, § 10, eff Sept 1, 1965; L 1973, ch 651, § 1, eff Sept 1, 1973; L 1978, ch 532, §§ 1–3; L 1984, ch 827, § 1, eff Aug 5, 1984; L 1992, ch 767, § 5, eff Jan 1, 1993; L 1996, ch 492, § 1, eff Jan 1, 1997; L 1996, ch 682, § 3; L 1997, ch 518, § 3, eff Sept 3, 1997; L 2015, ch 529, § 1, effective December 11, 2015; L 2021, ch 593, § 9, effective May 7, 2022.