2000 NY Int. 45
Five statutory words--"unless the court orders otherwise"--are at the core of the present appeal. In a motion for summary judgment in lieu of complaint (see, CPLR 3213 ), was Supreme Court, upon denial of summary judgment, obliged to treat the moving and answering papers as a complaint and answer, or did the statute authorize outright dismissal of the action? We hold that the court's authority to order "otherwise" included discretion to dismiss, which was not abused here.
According to plaintiff-appellant, defendant-respondent
In December 1991, plaintiff--having learned to fly-- undertook to buy defendant's interest in the helicopter. He paid defendant another $150,000, and continued to allow defendant to house, and use, the helicopter. Relations between the two, however, soured during 1993, when plaintiff began to suspect that defendant was overcharging him for parts and service. In fall 1993, plaintiff--by then a Texas resident--flew to New York to take possession of the aircraft, at which time defendant allegedly demanded additional payments, but ultimately signed a Bill of Sale, and plaintiff took the helicopter to Texas. Plaintiff claims that defendant, in October 1993, informed the Federal Aviation Administration that the Bill of Sale was issued in error, and that the sale had not been finalized, thus beclouding plaintiff's title. He further alleges that defendant had in fact paid only $255,000 (not $300,000) for the helicopter.
These charges formed the basis of plaintiff's petition,
consisting of two claims, filed in May 1996, in the District
Court of Lampasas County, Texas. The first claim, denominated
Declaratory Judgment, sought a declaration that plaintiff was
sole owner of the helicopter. The second claim, denominated
In September 1997, by motion for summary judgment in lieu of complaint in New York State Supreme Court, plaintiff sought recognition and enforcement of the Texas judgment, annexing the petition, proof of service, correspondence between the parties and the default judgment. Defendant cross moved for dismissal of the action for lack of personal jurisdiction (CPLR 3211 [a],), asserting that this was a New York transaction between New Yorkers; that there was no proof that plaintiff himself was a Texas resident at the time of the challenged transaction; that no part of the agreement was to be performed in Texas; and that defendant had no meaningful contacts with Texas.
Plaintiff countered with the opinion of Texas counsel
that the parties entered into one or more contracts regarding the
helicopter in 1992 and 1993, at which time plaintiff lived in
Supreme Court denied plaintiff's motion and granted defendant's cross motion, dismissing the action on the ground that the Texas court lacked jurisdiction over defendant. On plaintiff's appeal, the Appellate Division affirmed. In a comprehensive opinion, the court concluded first that Texas lacked jurisdiction over defendant, rendering the default judgment unenforceable in New York, and second that Supreme Court had discretion--which it did not abuse--to dismiss the complaint. With the lack of Texas jurisdiction now being law of the case, and only the second issue before us on appeal, we affirm.
The CPLR gives greater presumptive merit to two
categories of claims--actions based on instruments for the
payment of money, and actions based on judgments
When all goes smoothly, plaintiffs who choose this accelerated procedure can have relief in record time. The significant body of 3213 case law, however, signals that the course is not always a smooth one. In the present case, plaintiff has hit what he contends is an impermissible obstacle: final dismissal of his claims against defendant.
Plaintiff urges that, if summary judgment is denied
CPLR 3213 compels conversion, and that the motion papers should
have been treated as a complaint and answer, allowing him to
litigate his underlying claims on the merits. Alternatively, he
contends that the court's failure to convert his papers was an
abuse of discretion as a matter of law. Plaintiff underscores
that Supreme Court's error in dismissing the case has prejudiced
him because the Statute of Limitations now has run on his claims
against defendant. Defendant counters that conversion would have
been futile because the action was based solely on the Texas
Nothing in the statute, of course, obliges a court, upon denial of summary judgment, to treat CPLR 3213 motion papers as a complaint and answer, regardless of the circumstances. Although the statute provides that, upon denial of summary judgment, the moving and answering papers shall be deemed a complaint and answer, it also explicitly permits a court to order otherwise. Acting within that authority courts have, for example, required service of pleadings; they have even awarded summary judgment to the defendant (see, e.g., Weissman v Sinorm Deli, , 88 NY2d 437). There is thus no merit to plaintiff's contention that conversion is in all instances compelled.
Alternatively, plaintiff insists that Supreme Court abused its discretion by failing to ascertain whether dismissal would prejudice commencement of a plenary action--as it would here (see, Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3213:11, at 509). We agree with the Appellate Division that, on the facts presented, Supreme Court did not abuse its discretion by dismissing the action outright.
It is clear from this record that all that Supreme
Court had before it was the question of Texas jurisdiction over
defendant. Both parties' submissions, including several
affidavits, were fully focused on that question. At no point did
plaintiff suggest to the court that, if denied summary judgment,
he wished to pursue the underlying merits, or that there were
additional claims he might wish to assert against defendant in a
plenary New York action, as now appears to be the case. At no
The closest plaintiff came to alerting Supreme Court to his present contention was counsel's concluding assertion in his affidavit that, should summary judgment be denied (parroting the statute) the papers be deemed a complaint and answer pursuant to CPLR 3213 . It surely was no abuse of discretion for the court to have taken that assertion to refer to a complaint and answer in an action to enforce the Texas judgment; defendant himself noted that, if the case were not dismissed, there were triable issues of fact as to personal jurisdiction. In no sense did plaintiff's conclusory assertion advise the court that he sought the opportunity to litigate the underlying charges on the merits, even alleging claims outside the four corners of the Texas petition. Supreme Court's denial of such a request might well have constituted an abuse of discretion, but that is an issue we need not reach. Plaintiff never made that request. There concededly having been no Texas jurisdiction, it surely was not an abuse of discretion in this case to grant defendant's cross motion and dismiss the action.
Useful as CPLR 3213 is, there may be pitfalls when it
is invoked carelessly (Siegel, Practice Commentaries,
McKinney's Cons Laws of NY, Book 7B, CPLR 3213 :1, at 497) or too
enthusiastically (Siegel's Practice Review, No. 93, at 1 [March
2000]). This case points up yet another risk, applicable
generally to appeals to a court's discretion: if litigants do
not make clear what relief they would like, the court can hardly
Accordingly, the order of the Appellate Division should be affirmed, with costs.
1 While foreign judgments--meaning judgments entitled to full faith and credit--can be enforced in New York upon registration, that procedure is not available for default judgments (see, CPLR 5401 ).