Opinion
302783/08.
Decided December 11, 2008.
Defendant moves seeking an Order pursuant to CPLR §§ 3211(a)(2) and 305, dismissing the instant action for want of subject matter jurisdiction. Defendant avers that insofar as the summons in the instant action lacks certain language, the same is jurisdictionally defective and thus must be dismissed. Alternatively, defendant seeks an Order pursuant to CPLR §§ 3211(a)(8) and 308, dismissing the instant action for want of personal jurisdiction. Defendant avers that he was never personally served with process at his home. Should the Court deny the instant application seeking dismissal, defendant seeks an Order extending his time to interpose an answer pursuant to CPLR § 3211(f). Plaintiff opposes the instant motion averring that the summons served upon the defendant was not defective as per CPLR § 305(a). Moreover, plaintiff opposes the instant motion insofar as defendant was properly served with process. While denying that the summons served was in anyway defective, plaintiff cross-moves seeking leave to amend the same pursuant to CPLR § 305(c).
For the reasons that follow hereinafter, defendant's motion is granted in part. Plaintiff's cross-motion is hereby granted.
The instant action is for alleged damages incurred as a result of defendant's default on a lease.
In support of the instant motion, defendant submits an affidavit, wherein he avers that the summons served upon him was defective insofar as it did not contain several words and or statements. Defendant avers that the summons did not indicate that he should appear in Supreme Court or in which County. The Summons also did not indicate that the address for the Supreme Court, or where within the Court he should appear. The summons also failed to identify the person with whom the answer should be filed and that in the event of default the relief in the complaint might be granted without further notice. Lastly, defendant avers that the summons fails to specify the basis of venue. Defendant further avers that he was improperly served with process insofar as he found the summons and complaint in this action at or about the front door of his home on August 8, 2008 at approximately 8PM. On said date, defendant had been home since 6PM, with the door open, and never left his home. No one rang his bell and no one knocked. No one attempted to serve defendant with process.
Defendant submits a copy of the summons in the instant action. The same bears the index number in the within action and the date the same was filed with the clerk. The summons does not specify the basis of venue. The summons also fails to contain the words or statement alleged by defendant in his complaint.
Defendant submits a facsimile cover sheet, dated August 25, 2008. Said cover sheet evinces that defendant attempted to have plaintiff discontinue the instant action on the very grounds that defendant premises the instant motion. A copy of the summons is annexed to said cover sheet.
In opposition to defendant's motion and in support of his cross-motion, plaintiff submits an affidavit wherein he avers that defendant is employed by the New York City Department of Housing Preservation and Development, located at 100 Gold Street, New York, NY. Defendant was served with process thereat. Plaintiff avers that the defendant's last known address was 1227 Thieroit Avenue, Bronx, NY.
Plaintiff submits a copy of the summons attached to which is a complaint.
Plaintiff submits three affidavits of service. The first evinces that on April 17, 2008, defendant was served with process at his actual place of business, 100 Gold Street, New York, NY, when a copy of the summons and complaint were left with E. Garcia, a person of suitable age and discretion. Thereafter, a copy of the same was mailed to the same address. The second affidavit evinces that defendant was served with process on August 6, 2008, at his home, when a copy of the summons and complaint were left with a co-tenant, a person of suitable age and discretion, at 1227 Thieroit Avenue, Bronx, NY. Thereafter a copy of the same was mailed to defendant at the aforementioned address. The third affidavit evinces that defendant was served with process on August 7, 2008, when a copy of the summons and complaint were mailed to the door of defendant's residence, 1231 Evergreen Avenue, Bronx, NY. Two prior attempts at service proved fruitless.
CPLR § 3211(a)(2)When it is alleged that the Court lacks subject matter jurisdiction over an action, a defendant can make a motion to dismiss, for want of subject matter jurisdiction, pursuant to CPLR § 3211(a)(2).
CPLR § 305CPLR § 305 governs the contents of a summons, supplemental summons, and summons with notice. Said section also governs the amendment of the aforementioned documents. CPLR § 305 reads
(a) Summons; supplemental summons. A summons shall specify the basis of the venue designated and if based upon the residence of the plaintiff it shall specify the plaintiff's address, and also shall bear the index number assigned and the date of filing with the clerk of the court. A third-party summons shall also specify the date of filing of the third-party summons with the clerk of the court. The summons in an action arising out of a consumer credit transaction shall prominently display at the top of the summons the words "consumer credit transaction" and, where a purchaser, borrower or debtor is a defendant, shall specify the county of residence of a defendant, if one resides within the state, and the county where the consumer credit transaction took place, if it is within the state. Where, upon order of the court or by stipulation of all parties or as of right pursuant to section 1003, a new party is joined in the action and the joinder is not made upon the new party's motion, a supplemental summons specifying the pleading which the new party must answer shall be filed with the clerk of the court and served upon such party.(b) Summons and notice. If the complaint is not served with the summons, the summons shall contain or have attached thereto a notice stating the nature of the action and the relief sought, and, except in an action for medical malpractice, the sum of money for which judgment may be taken in case of default. (c) Amendment. At any time, in its discretion and upon such terms as it deems just, the court may allow any summons or proof of service of a summons to be amended, if a substantial right of a party against whom the summons issued is not prejudiced.
When a summons is served with a complaint, it is CPLR § 305(a), which governs. Accordingly, as per the statute, a summons accompanied by a complaint need only "specify the basis of the venue designated and if based upon the residence of the plaintiff it shall specify the plaintiff's address, and also shall bear the index number assigned and the date of filing with the clerk of the court." CPLR § 305(a). As per CPLR § 2201(c), which mandates that all papers served or filed bear a caption, the caption in a summons must also bear the name of all the parties to an action. It is well settled, however, that the failure to comply with the technical pleading requirements promulgated by CPLR § 305(a), are mere irregularities, not tantamount to a jurisdictional defect, and thus no dismissal of an action is warranted unless there is a demonstration of prejudice. Cruz v. New York City Housing Authority, 269 AD2d 108 (1st Dept. 2000) (Index number omitted from summons was a mere irregularity, which insofar constituted a failure to comply with CPLR § 305(a), did not warrant dismissal absent prejudice.); Bevona v. Malek, 224 AD2d 317 (1st Dept. 1996) (Plaintiff's summons, failing to list the date the same was filed with clerk, i.e., the date the index number was purchased, was not, absent prejudice, a basis for dismissal as the same constituted noncompliance with CPLR § 305(a).); City of Amsterdam v. Board of Assessors of the Town of Providence, 237 AD2d 63 (3rd Dept. 1998); Maldonado v. County of Suffolk, 229 AD2d 376 (2nd Dept. 1996); Cellular Telephone Company v. Village of Tarrytown, 209 AD2d 57 (2nd Dept. 1995); Concepcion v. New York City Housing Authority, 8 Misc 3d 1008 (A) (Supreme Court, Bronx County 2005); Forte v. Long Island Rail Road, 143 Misc 2d 663 (Supreme Court, New York County 1989) (Summons which omitted basis for venue was not jurisdictionally defective as the same constituted an irregularity for failure to comply with CPLR § 305(a) and absent prejudice action could not be dismissed.); Archer v. Astra Pharmaceutical Products, Inc., 133 Misc 2d 804 (Supreme Court, New York County 1986).
When a summons is served without a complaint, it is CPLR § 305(b) which governs. Hence, a summons served without a complaint "shall contain or have attached thereto a notice stating the nature of the action and the relief sought, and, except in an action for medical malpractice, the sum of money for which judgment may be taken in case of default." CPLR § 305(b). It is well settled that when a plaintiff fails to tender the requisite notice along with a summons not served with a complaint, the summons does not commence an action. Parker v. Mack, 61 NY2d 114 (1984); Scaringi v. Elizabeth Broome Realty Corp., 191 AD2d 223 (1st Dept. 1993). This is because the failure to comply with CPLR § 305(b) is tantamount to a jurisdictional defect mandating dismissal of an action. Kaplan v. Manoli, 64 NY2d 849 (1985) (Action dismissed for plaintiff's failure to comply with CPLR § 305(b), which requires that a summons with notice, served absent a complaint, be accompanied by the requisite notice. Noncompliance with CPLR § 305(b) is a jurisdictional defect requiring dismissal of an action.); Frek v. Mercy Hospital, 63 NY2d 635 (1984) (Action dismissed for plaintiff's failure to comply with CPLR § 305(b), which requires that a summons with notice, served absent a complaint, be accompanied by the requisite notice. Noncompliance with CPLR § 305(b) is a jurisdictional defect requiring dismissal of an action.); Schwartz v. Commissioner of Finance of the City of New York, 172 AD2d 410 (1st Dept. 1991); Peterson v. IBJ Schroder Bank Trust Co., 172 AD2d 165 (1st Dept. 1991); Micro-Spy, Inc. v. Small , 9 AD3d 122 (2nd Dept. 2004); Wilber National Bank v. F A Incorporated, 301 AD2d 706 (3rd Dept. 2003). Under such circumstances, where the summons is jurisdictionally defective, it cannot be amended. Wells v. Mount Sanai Hospital and Medical Center, 196 AD2d 749 (1st Dept. 1993); Tamburo v. P C Food Markets, Inc., 36 AD2d 1017 (2nd Dept. 1971); Micro-Spy, Inc. v. Small , 9 AD3d 122 (2nd Dept. 2004).
CPLR § 305(c) allows a party to amend the summons in a proceeding and authorizes the Court to "allow any summons or proof of service to be amended, if a substantial right of a party against whom the summons issued is not prejudiced." CPLR § 2001 further states that at any stage of an action, a Court may permit a mistake, omission, defect or irregularity to be corrected upon such terms as may be just. In allowing such amendments, the relevant inquiry is whether the correct defendant was actually served, whether the amendment would prejudice the defendant in any way, and whether the correct defendant was on notice that despite the mistake in the caption or summons or complaint, he/she was the entity or person against whom the suit was brought. Donna Fink v. Regent Hotel, Ltd., 234 AD2d 39 (1st Dept. 1996); Pinto v. House, 79 AD2d 361 (1st Dept. 1981); Robert Ober v. Rye Town Hilton, 159 AD2d (2nd Dept. 1990).
3211(a)(8)
On a motion to dismiss for lack of personal jurisdiction, plaintiff bears the burden of proof on the issue of jurisdiction. O'Brien v. Hackensack University Medical Center, 305 AD2d 199 (1st Dept. 2003). The law does not mandate that plaintiff make a prima facie showing of personal jurisdiction. Bunkoff General Contractors, Inc., v. State Auto. Mut. Ins. Co., 296 AD2d 699 (3rd Dept. 2002). Instead, plaintiff need only demonstrate that he has made a sufficient start on the issue of jurisdiction to warrant further discovery on the issue. Id. Stated another way, plaintiff need only demonstrate that there is an issue as to jurisdiction that cannot be resolved absent further discovery on that issue. Id. If questions of fact as to the issue of jurisdiction exist, the court can order a hearing to resolve the issue. EAC Systems, Inc. v. Chevie, 154 AD2d 813 (3rd Dept. 1989).
When service upon the defendant is improper, a motion to dismiss for lack of personal jurisdiction will be granted. Feinstein v. Bergner, 48 NY2d 234 (1979) (Court dismissed complaint for lack of personal jurisdiction, when defendant was served with process by nail and mail service at an address he no longer occupied.); West v. Doctor's Hospital, 198 AD2d 92 (1st Dept. 1993) (Court granted motion to dismiss for want of personal jurisdiction, holding that service was improper when summons and complaint were left with someone on the 14th floor rather than the 8th floor, the floor where defendant maintained his office.); O'Connell v. Post , 27 AD3d 630 (2nd Dept. 2006) (Court granted motion to dismiss for lack of personal jurisdiction, holding that service was improper when plaintiff resorted to nail and mail service without attempting to serve defendant at his place of business).
Service of Process
"The burden of proving jurisdiction is upon the party asserting it and when challenged the party must sustain that burden by preponderating evidence." Green Point Savings Bank v. Taylor, 92 AD2d 910 (2nd Dept. 1983). As such, an affidavit of service is prima facie evidence of proper service and jurisdiction will be upheld, without a traverse hearing, if the only evidence submitted in opposition is a bare denial of service, Chemical Bank v. Darnley, 300 AD2d 613 (2nd Dept. 2002), or a minor discrepancy, such as the description of the recipient listed in the server's affidavit, Green Point Savings Bank v. Clark, 253 AD2d 514 (2nd Dept. 1998). However, if service is disputed via a sworn affidavit, a hearing to determine proper service is necessary. Green Point Savings Bank v. Taylor, 92 AD2d 910 (2nd Dept. 1983). Similarly, a sworn affidavit by the defendant, which denies that the place where he was served was not his residence is enough to invalidate service of process, thereby negating personal jurisdiction. New York State Higher Education Services Corporation v. Dean Perchik, 207 AD2d 1040 (4th Dept. 1994); Jeannine De Capua v. John Morrissey, 67 AD2d 832 (4th Dept. 1979).
CPLR § 308(2)Pursuant to CPLR § 308(2), personal service can be accomplished by either serving a defendant at home or where said defendant works. Per this section, personal service can be accomplished by leaving the summons and complaint with a person of suitable age and discretion.
CPLR §§ 320(a) and 3211(f)
CPLR § 320(a) states, in pertinent part, that "[t]he defendant appears by serving an answer or notice of appearance, or by making a motion which has the effect of extending the time to answer." CPLR § 3211(f) states
Extension of time to plead. Service of a notice of motion under subdivision (a) or (b) before service of a pleading responsive to the cause of action or defense sought to be dismissed extends the time to serve the pleading until ten days after service of notice of entry of the order.
When read together, CPLR §§ 320(a) and 3211(f), serve to extend a defendant's time to serve an answer by ten days when a defendant chooses to make a pre-answer motion.
Discussion
Defendant's motion seeking dismissal of the instant action pursuant to CPLR §§ 3211(a)(2) and 305 is hereby denied insofar as defendant fails to establish that the Court lacks subject matter jurisdiction. It is well settled that the court can, as per CPLR § 3211(a)(2), dismiss an action when it is proven that the court lacks subject matter jurisdiction. When a summons is served and the same is served with a complaint, what a summons should contain is governed by CPLR § 305(a). With respect to a summons, CPLR § 305(a) mandates that the same "specify the basis of the venue designated and if based upon the residence of the plaintiff it shall specify the plaintiff's address, and also shall bear the index number assigned and the date of filing with the clerk of the court." CPLR § 305(a). As per CPLR § 2201(c), which mandates that all papers served or filed bear a caption, the caption in a summons must also bear the name of all the parties to an action. The failure to comply with CPLR § 305(a) is an irregularity, not a jurisdictional defect and does not require dismissal in the absence of prejudice. CPLR § 305(c) allows a party to amend the summons in a proceeding. CPLR § 2001 further states that at any stage of an action, a court may permit a mistake, omission, defect or irregularity to be corrected upon such terms as may be just. In allowing such amendments, the relevant inquiry is whether the correct defendant was actually served, whether the amendment would prejudice the defendant in any way, and whether the correct defendant was on notice that despite the mistake in the caption or summons or complaint, he/she was the entity or person against whom the suit was brought.
In this case, defendant's own affidavit evinces that he was served with both a summons and a complaint. Within his affidavit, plaintiff also avers that the summons was defective insofar as it was missing several words and phrases, including the basis upon which venue was based. The summons, also submitted by defendant, bears out his contention. Based on the foregoing, insofar as the summons was accompanied by the complaint, any deficiency within the same is governed by CPLR § 305(a), which only requires that the summons bear the index number, the date it was filed with the clerk, indicate the basis of venue, and provide plaintiff's address if the same is the grounds for venue. As such, despite the litany of deficiencies alleged by defendant, the only deficiency plaguing the summons is the failure to articulate the grounds for venue and the failure to provide plaintiff's address if the same is grounds for venue. Such a defect is an irregularity and not a jurisdictional defect. Accordingly, defendant's motion seeking dismissal pursuant to CPLR §§ 3211(a)(2) and 305 is hereby denied.
Defendant's motion seeking dismissal of the within action pursuant to CPLR §§ 3211(a)(8) and 308 on grounds that the Court lacks personal jurisdiction over him is hereby denied insofar as defendant has failed to negate service. When a defendant demonstrates that the service upon him is improper, a motion to dismiss for lack of personal jurisdiction will be granted. An affidavit of service is prima facie evidence of proper service and jurisdiction will be upheld, without a traverse hearing, if the only evidence submitted in opposition is a bare denial of service. Pursuant to CPLR § 308(2), personal service can be accomplished by either serving a defendant at home or where said defendant works. Per this section, personal service can be accomplished by leaving the summons and complaint with a person of suitable age and discretion.
In this case, defendant attempts to negate service upon him by stating that he was not properly served with process on December 8, 2008, when he was purportedly served at his home. Defendant avers that he was home from 6PM and through the night on said date. He further avers that he had his door open and that no one ever knocked, rang his bell or otherwise attempted to serve him. Defendant avers that instead, the summons and complaint were found by his door. In essence, plaintiff avers that nail and mail service was attempted on said date and that the same was improper insofar as he was home.
Plaintiff submits three affidavits of service. The first evinces that he was served by substituted service on April 17, 2008 at his actual place of business. The second evinces that he was served with process at his abode, by substituted service, on August 6, 2008. The third evinces that he was served with process via nail and mail service at his abode on August 7, 2008.
Defendant's motion is denied insofar as his affidavit, averring non-service or improper service on August 8, 2008, fails to negate service on the dates described within the affidavits of service. None of the affidavits, and in particular those which aver service at defendant's abode, evince that defendant was served on August 8, 2008. Instead said affidavits aver that defendant was served with process on August 6 and 7, 2008. Insofar as defendant fails to negate that he was served on said dates, his motion is denied for this reason alone. Additionally, plaintiff's affidavit completely fails to address service upon him at his actual place of business on April 17, 2008. As such, he fails to negate service for this additional reason. Defendant's motion is thus denied.
Defendant's motion, pursuant to CPLR § 3211(f), seeking an extension of his time to interpose an answer is hereby granted. When read together, CPLR §§ 320(a) and 3211(f), serve to extend a defendant's time to serve an answer by ten days when a defendant chooses to make a pre-answer motion. Insofar as the instant motion is a pre-answer motion, defendant's application seeking to extend his time to interpose an answer is hereby extended by 10 days from service upon him of this Order, with Notice of Entry.
Plaintiff's cross-motion seeking leave to amend his summons pursuant to CPLR § 305(c) is hereby granted. In allowing an amendment pursuant to CPLR § 305(c), the relevant inquiry is whether the correct defendant was actually served, whether the amendment would prejudice the defendant in any way, and whether the correct defendant was on notice that despite the mistake in the caption or summons or complaint, he/she was the entity or person against whom the suit was brought. As discussed above, insofar as plaintiff fails to articulate the basis of venue on his summons, the same is irregular. Defendant should be allowed to correct said irregularity insofar as defendant fails to allege any prejudice, it is clear that defendant is the correct defendant and he was actually served with process. Plaintiff's cross-motion is thus granted. It is hereby
ORDERED that defendant's time to interpose an answer is hereby extended by ten days after such time as he served with a copy of this Decision and Order, with Notice of Entry. It is further
ORDERED that plaintiff is granted leave to amend his summons to specify the basis of venue and that he serve the amended summons within thirty (30) days hereof. It is further
ORDERED that plaintiff serve a copy of this Order with Notice of Entry upon defendant within thirty (30) days hereof.
This constitutes this Court's decision and Order.