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Motions and crossmotions process in Kings County Court, New…

Motions and crossmotions process in...
Motions and crossmotions process in Kings County Court, New York (please do not reply if not a practicing attorney in NY and not familiar with courts practices in Kings County)
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Answered in 57 minutes by:
3/20/2018
DamienJD
DamienJD, Lawyer
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Hello: My name is ***** ***** I am an attorney. I have helped you in the past. What question may you have?

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Customer reply replied 4 months ago
I made a motion to dismiss. Opposition papers and a cross-motion for summary judgement were filed by Plaintiff. Is it likely for Plaintiff to win Motion for Summary Judgement? Can a moving party unilaterally decide to withdraw their motion after opposition papers have been submitted to the court? and can the cross-motion stand if the underlying motion is withdrawn?

We have to break this down because of the timing of the motions and the type of claim. What type of claim is this? Is it to pay money owed?

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Customer reply replied 4 months ago
Background: debt collection case, I filed motion to vacate default judgement which was granted. Plaintiff requested to amend his complaint and the answer due date was set. Instead of an answer, I filed motion to dismiss (never filed motion to dismiss before) based on the fact that there is the same lawsuit pending in a different court. Plaintiff proceeded with an opposition and crossmotion for summary judgement.To summarize: I filed motion to dismiss on the amended complaint. The opposing party filed a cross motion stating that I have previously filed a motion for stay proceedings which has implied a dismissal and therefore can not file a motion to dismiss on the same grounds.

Hold, please while a read and respond...

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Did you object to the cross motion yet or reply to their opposition to your motion?

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Customer reply replied 4 months ago
no

Hopefully, you would want to respond if you still are within the time period to do so. If plaintiff's cross-motion is a summary judgment motion, there could be an argument that it is premature. Generally, a motion for summary judgment can only be made after an answer has been served (CPLR §3212[a]).

So, the proper steps to take is to reply to the opposition papers to the motion to dismiss and opposed the summary judgment motion asap.

We can discuss this more if you want to do so.

If you have further questions or you need further assistance, just let me know.

If not, please remember to rate my answer between 3 to 5 stars without any additional costs to you. That is how I get credit for answering your question. Best regards.

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Customer reply replied 4 months ago
Basically, the plaintiff is alledging that because I have never served an answer and the time has lapsed to answer, he is entitled to summary judgement. Wouldnt the motion to dismiss itself trigger the cross motion for summary judgement?

Generally, a proper motion when someone does not answer by the deadline is a motion for a default judgment, not a motion for summary judgment. A defendant can serve a motion to dismiss is in lieu of an answer within the time to answer and is not penalized for not filing the answer. If the dismissal motion is denied, then the defendant can file the answer.

If you have further questions or you need further assistance, just let me know.

If not, please remember to rate my answer between 3 to 5 stars without any additional costs to you. That is how I get credit for answering your question. Best regards.

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Customer reply replied 4 months ago
Thank you so much, Damien!!!

You are very welcome!

Please remember to rate my answer between 3 to 5 stars without any additional costs to you. That is how I get credit for answering your question. Best regards.

DamienJD
DamienJD, Lawyer
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Customer reply replied 4 months ago
will do...thanks again!
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