Decided November 30, 2010.
Meyer Y. Silber, Esq., The Silber Law Firm, LLC., New York, New York, Plaintiff's counsel.
Jeffrey Dweck, Esq., New York, New York, Defendant's counsel.
By notice of motion filed on June 21, 2010, under motion sequence number one, plaintiff A D International Corporation Defined Benefit Pension Plan (hereinafter "A D") moves pursuant to CPLR § 3213 for an order granting it summary judgment against defendant Jeffrey Terzi (hereinafter "Terzi") in the amount of $120,680.29 plus "costs and interest at 9% from November 10, 2008". The motion was noticed to be heard on July 19, 2010. Terzi opposes A D's motion with a cross-motion filed under motion sequence number two. The court denied the cross-motion by order dated October 8, 2010.
Plaintiff commenced this action by filing the instant motion for summary judgment in lieu of complaint on June 21, 2010 with the Kings County Clerk's office.
A D's motion papers consist of a summons, a notice of motion in lieu of complaint, an attorney's affirmation, an affidavit of Dan Golan, an affidavit of service, a memorandum of law, and a single exhibit which is a copy of a document labeled "Demand Grid Promissory Note".
LAW AND APPLICATION
CPLR § 308 pertains to personal service upon a natural person and provides as follows:
Personal service upon a natural person shall be made by any of the following methods:
1. by delivering the summons within the state to the person to be served; or
2. by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend "personal and confidential" and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing; proof of service shall identify such person of suitable age and discretion and state the date, time and place of service, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law.
CPLR § 2214(a) and (b) provides as follows:
Motion papers; service; time. (a) Notice of motion. A notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor. Relief in the alternative or of several different types may be demanded. (b) Time for service of notice and affidavits. A notice of motion and supporting affidavits shall be served at least eight days before the time at which the motion is noticed to be heard. Answering affidavits shall be served at least two days before such time. Answering affidavits and any notice of cross-motion, with supporting papers, if any, shall be served at least seven days before such time if a notice of motion served at least sixteen days before such time so demands; whereupon any reply or responding affidavits shall be served at least one day before such time.
CPLR § 3213 provides as follows: Motion for summary judgment in lieu of complaint. When an action is based upon an instrument for the payment of money only or upon any judgment, the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint. The summons served with such motion papers shall require the defendant to submit answering papers on the motion within the time provided in the notice of motion. The minimum time such motion shall be noticed to be heard shall be as provided by subdivision (a) of rule 320 for making an appearance, depending upon the method of service. If the plaintiff sets the hearing date of the motion later than the minimum time therefor, he may require the defendant to serve a copy of his answering papers upon him within such extended period of time, not exceeding ten days, prior to such hearing date. No default judgment may be entered pursuant to subdivision (a) of section 3215 prior to the hearing date of the motion. If the motion is denied, the moving and answering papers shall be deemed the complaint and answer, respectively, unless the court orders otherwise.
CPLR § 3213 permits a party to move for summary judgment in lieu of a complaint when the action is based upon an instrument for the payment of money only ( Interman Industrial Products Ltd. v. R.S.M. Electron Power Inc., 37 NY2d 151, 155). A promissory note is an instrument for the payment of money only for the purposes of CPLR § 3213 ( Davis v. Lanteri, 307 AD2d 947 [2nd Dept., 2003]).
Under CPLR § 3213, when an action is based upon an instrument for the payment of money only, the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint.
In order to establish a prima facie case on a promissory note, plaintiff must establish the existence of the instrument and the defendant's failure to make payment pursuant to the terms of the instrument( Magiatordi v. Maher, 293 AD2d 454 [2nd Dept., 2002]).
Plaintiff, in an unopposed motion for summary judgment in lieu of a complaint, bears the burden of establishing that the defendant was properly served with the motion ( Cadle Co., v. Ayala , 47 AD3d 919 [2nd Dept., 2008]). CPLR § 3213 is a hybrid procedure incorporating certain elements of an action and certain elements of motion practice ( Goldstein v. Saltzman , 13 Misc 3d 1023 [NY Sup. 2006]). "As with a plenary action, jurisdiction is obtained over the defendant by serving the defendant with the summons, notice of motion and supporting papers in a method prescribed in CPLR Article 3. The minimum amount of time the plaintiff must give the defendant to oppose the motion for summary judgment in lieu of complaint is determined by the amount of time the defendant would have to appear in the action if the defendant had been served with a summons and complaint or summons with notice"( Goldstein v. Saltzman , 13 Misc 3d 1023 [NY Sup. 2006]).
CPLR § 3213 provides, "The minimum time such motion shall be noticed to be heard shall be as provided by subdivision (a) of rule 320 for making an appearance, depending upon the method of service." Thus, in a 3213 motion, the minimum amount of time the plaintiff must give the defendant to appear and oppose the motion is dependent upon the date and method of service, ( See generally, Siegel, New York Civil Practice 4th edition § 291).
If the defendant is a natural person who is served pursuant to CPLR § 308(2) the minimum amount of time the between service of the summons and motion papers and the return date is forty days. CPLR § 320(a) gives a defendant served in this manner thirty days from completion of service to appear. Service is complete ten days after the affidavit of service is filed with the county clerk.
The affidavit of service of Gerald Murray, plaintiffs' process server, avers that service was attempted pursuant to CPLR § 308(2). Plaintiff began the process by personally delivering the papers on June 16, 2010, to Sara Terzi, a relative of the defendant at defendant's last known address. The next day the papers were sent by the United States mail addressed to the defendant at the exact same address that delivery was made to Sara Terzi. .
To successfully complete service pursuant to CPLR § 308(2), plaintiff was required to file the affidavit of service by no later than twenty days of either delivery or mailing, whichever was effected later. In this case the filing had to occur by no later than July 7, 2010, twenty days after June 17, 2009, the mailing date. Plaintiff did not allege or demonstrate that the affidavit of service had been filed with the clerk of the court. The court make take judicial notice of its own records ( See, Wachovia Bank, N.A. v. Otto N. Williams, 17 Misc 3d 1127(A) [NY Sup. 2007] citing Matter of Khatibi v. Weill , 8 AD3d 485 [2nd Dept. 2004]). This court has taken judicial notice that the affidavit of service of the instant motion was not filed with the county clerk. Therefore service upon the defendant has not been completed.
There is another more serious problem with the motion papers. Plaintiff directed the defendant to serve answering papers no later than 10 days prior to the return date of July 19, 2010. As previously indicated, service has never been completed. Therefore plaintiff did not give the defendant the statutorily required time to appear and respond to the motion. A failure to give the defendant the statutorily mandated time to appear and answer a motion for summary judgment in lieu of complaint compels not only a denial of the motion but also a dismissal of the action ( See, Goldstein v. Saltzman, 13 Misc 3d 1023 [NY Sup. 2006] see also Malament v. Jong Kim, 22 Misc 3d 1110(a) [NY Sup. 2008]).
However, on October 7, 2010, defendant, Terzi filed a cross-motion seeking dismissal of the instant action pursuant to CPLR § 3211(a)(7). The cross-motion was also meant to serve as opposition to the instant motion. The cross-motion, however, did not claim that the court lacked personal jurisdiction or that the instant motion was improperly noticed to be heard.
Instead, Terzi's asserted that the instant motion was already part of another action pending between the parties and should either be consolidated with the other action or dismissed outright. He sought in the alternative, that the instant motion be referred to the Justice handling the other action. Terzi, however, did not annex a copy of the pleadings of the other action which he claimed covered the exact same transaction of the instant motion.
On October 8, 2010, the court denied the cross-motion without prejudice pursuant to CPLR § 2214[c] for failure to annex the pleadings of the other action.
By opposing the instant motion the issue of service of the instant motion was effectively waived ( See, William H. Danne, New York Jurisprudence, Second Edition, § 89, which states, in pertinent part, "Resisting a motion on the merits will constitute an appearance", citing Metal Shelter Co. v. Fosdick, 172 N.Y.S. 273 [NY Sup. 1918] aff'd 188 A.D.882 [1st Dept. 1919]). In other words, Terzi volunteered to subject himself to this court's jurisdiction through its opposition to the instant motion ( See, William H. Danne, New York Jurisprudence, Second Edition, § 88, which states, in pertinent part, "Generally, a defendant who participates on the merits, with knowledge that there is an action pending and with a full intention to appear therein, makes an informal appearance, and submits to the jurisdiction of the court", citing Rubino v. City of New York, 145 AD2d 285 [1st Dept. 1989]).
For the foregoing reasons, the court will not dismiss the instant motion. Plaintiff is directed to serve a regular complaint upon the defendant. The defendant is directed to answer the complaint within twenty days of service and the action may proceed accordingly (see McKinney's commentaries to CPLR § 3213, C3213:11 at page 420).
The foregoing constitutes the decision and order of the court.