CPLR § 3213

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.