Opinion
513282/2015
10-06-2016
Felicia Fentrez, Plaintiff, v. Nachla Associates, LLC, Defendant.
Attorney for plaintiff Marc Reibman, Esq. Reibman & Weiner 26 Court Street Brooklyn, NY 11242 (718) 522-1743 Attorney for Defendant Michael Morris, Esq. Cozen O'Connor 45 Broadway, 16th Floor New York, NY 10006 (212) 509-9400
Attorney for plaintiff Marc Reibman, Esq. Reibman & Weiner 26 Court Street Brooklyn, NY 11242 (718) 522-1743 Attorney for Defendant Michael Morris, Esq. Cozen O'Connor 45 Broadway, 16th Floor New York, NY 10006 (212) 509-9400 Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of defendant Nachla Associates, LLC (hereinafter NAL), filed on June 10, 2016, under motion sequence number one, for an order dismissing the complaint of plaintiff Felicia Fentrez (hereinafter Fentrez) pursuant to CPLR 3211 (a) (8). Notice of motion Affirmation in support Exhibits A-C Opposition within Fentrez's cross motion Reply affirmation in support of NAL's motion and in opposition to Fentrez's cross motion
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of cross motion by Fentrez, filed on August 23, 2016, under motion sequence number two, for an order determining that the summons with notice filed on October 30, 2015 (hereinafter the subject summons) satisfies the requirements of CPLR 305 (b), or in the alternative, deeming the subject summons amended to explicitly state facts already self evident on the face of the document. Notice of cross motion Affirmation in support of the cross motion and in opposition to NAL's motion Exhibits 1-10 Reply affirmation in support of NAL's motion and in opposition to Fentrez's cross motion Reply affirmation in support of Fentrez's cross motion and in opposition to NAL's motion
BACKGROUND
On October 30, 2015, Fentrez commenced the instant action by filing the subject summons and a statement of authorization for electronic filing with the Kings County Clerk's office (KCCO). On January 7, 2016, Fentrez filed an affidavit of service of the subject summons upon NAL. On April 6, 2016, NAL filed a notice of appearance and a demand for a complaint. On April 14, 2016, Fentrez filed a verified complaint and a duplicate copy of the subject summons. On May 9, 2016, NAL interposed a verified answer to the verified complaint.
The verified complaint alleges thirteen allegations of fact in support of a single cause of action for damages for personal injuries. In particular, Fentrez alleges that she is a resident of apartment E1 at 7 Balfour Place, Brooklyn, New York (hereinafter the subject property). At all relevant times NAL has been the owner, operator and manager of the subject property. Sometime prior to November 4, 2012, NAL ordered and approved certain work to be performed in Fentrez's apartment. The work, as completed and approved by NAL, raised the height of the threshold of the kitchen to a higher level than the position of the adjoining hallway. This height differential allegedly created a dangerous tripping hazard.
On November 4, 2012, Fentrez was attempting to enter the kitchen from the adjoining hallway when she tripped, fell and injured herself due to the dangerous and excessive height of the kitchen threshold area. Fentrez is seeking damages caused by NAL's breach of its duty, as the owner of a multiple dwelling, to properly maintain the subject property in good repair and in a safe condition.
NAL's verified answer contains thirteen affirmative defenses including the defense of lack of personal jurisdiction. LAW AND APPLICATION NAL's Claim of Lack of Personal Jurisdiction
NAL seeks dismissal of the action pursuant to CPLR 3211 (a) (8) based on lack of personal jurisdiction. NAL contends that the subject summons which Fentrez filed with the KCCO office and served upon it was jurisdictionally defective. NAL further contends that defect cannot be cured by amendment pursuant to CPLR 305 (c) and that it has not waived the defect by interposing an answer.
"When a summons is served without a complaint it must be accompanied by a brief notice, commonly called a "default notice", as provided in CPLR 305 (b). The notice must briefly state the object of the action and the relief sought, including the sum of money being sought if the claim is for money. The notice can be set forth on the summons itself or can accompany the summons as a separate paper" (Siegel's New York Practice Fifth Edition § 60 Issuance of a Summons; Accompanying Papers).
Fentrez commenced the instant action by filing and serving a document denominated as "Summons with Notice". CPLR 305 (b) which sets forth the requirements for a summons and notice provides as follows: (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.
The "Summons with Notice" that Fentrez filed with KCCO and served upon NAL did not contain or have attached thereto a notice stating the nature of the action, the relief sought, or the sum of money for which judgment could be taken in case of default. Prior to the 1979 amendment to CPLR 305 (b), the subject summons used by Fentrez could be used to commence an action. After the 1979 amendment to CPLR 305 (b) and CPLR 3012 (b), the option of using a bare summons like the one utilized here was eliminated (Siegel's New York Practice Fifth Edition § 60 Issuance of a Summons; Accompanying Papers).
No action is commenced by the service of a summons alone which neither contains nor has attached to it a notice of the nature of the action and of the relief sought" (Parker v Mack, 61 NY2d 114, 115 [1984]). The Court of Appeals has stated that service of a bare summons without the notice required by CPLR 305 (b) constitutes a jurisdictional defect (Id.). The "Summons with Notice" used by Fentrez was defective and deprived the Court of personal jurisdiction over NAL. Fentrez Cross Motion to Deeming the Subject Summons as Proper
Fentrez seeks an order determining that the "Summons with Notice" filed with the KCCO on October 30, 2015 satisfies the requirements of CPLR 305 (b). As previously stated, the subject summons did not contain or have attached thereto a notice stating the nature of the action, the relief sought, or the sum of money for which judgment could be taken in case of default. For the reasons previously set forth, the subject summons does not comply with CPLR 305 (b). Fentrez's Cross Motion Deeming the Subject Summons as Amended
In the alternative, Fentrez seeks an order deeming the subject summons "amended to explicitly state facts already self evident on the face of the document". Fentrez cites CPLR 305 (c) in support of this branch of the cross motion. Fentrez contends that NAL had notice of the nature of the action because the subject summons identified her as the plaintiff and gave her address, the same address of the subject premise. Fentrez argues that by these facts NAL was aware that she was a resident of the subject property and that because of her preexisting relationship with NAL, NAL was aware of the nature of her dispute. Contrary to Fentrz's contention, there is nothing on the face of the subject summons which makes the nature of the cause of action self evident. Consequently, Fentrez's argument is unsupported in law or in fact.
CPLR 305 (c) provides that 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.
Although the description in a notice need not be absolutely precise, the complete absence of any notice is a jurisdictional defect (Wilber Nat. Bank v F & A Inc. 301 AD2d 706 [3rd Dept 2003] citing Premo v Cornell, 71 AD2d 223, 224 [3rd Dept 1979]; CPLR 305 [b]), and that defect renders the summons insufficient not only for the purposes of taking a default judgment, but also to obtain jurisdiction over a defendant (Wilber Nat. Bank v F & A Inc. 301 AD2d 706 [3rd Dept 2003] citing Parker v Mack, 61 NY2d 114, 117—118 [1984]).
The subject summons used to commence the instant action contained no notice of either the nature of the action or the relief sought. It was, therefore, jurisdictionally defective and not subject to cure by amendment pursuant to CPLR 305 (c) (Wilber Nat. Bank v F & A Inc. 301 AD2d 706 [3rd Dept 2003]). Fentrez's Cross Motion Deeming NAL to Have Waived the Defect
Fentrez has established that NAL appeared in the action, demanded a complaint, interposing a verified answer and engaged in discovery before making the instant motion. Fentrez further contends that NAL's conduct is identical to the conduct of the defendants in the matter of Sirkis v Jacob Cohen, 23 AD3d 369 [2nd Dept 2005]. In that case the Appellate Division Second Department found the defendant waived their objection to the plaintiffs' filing of a summons with notice that did not comply with CPLR 305 (b) by appearing in the action, answering the complaint, and litigating the merits of the action without raising this objection.
As NAL correctly asserted, the instant action is distinguishable from Sirkis v Jacob Cohen, 23 AD3d 369 [2nd Dept 2005]. In the instant action NAL has raised the affirmative defense of lack of jurisdiction in its answer and in the instant motion to dismiss. Indeed, the Court of Appeals of the State of New York in the matter of Goldenberg v Westchester County Health Care Corp., 16 NY3d 323, 327 [2011] has expressly held in similar circumstances that a waiver has not occurred. Nor does NAL's participation in discovery under these circumstances constitute a waiver of the defense of lack of jurisdiction (see Edwards, Angell, Palmer & Dodge, LLP v Gerschman, 116 AD3d 824, 825 [2nd Dept 2014]). Therefore, contrary to Fentrez's contention, NAL did not waive the objection to the jurisdictional defect of the subject summons.
CONCLUSION
Nachla Associates, LLC's motion for an order dismissing the complaint of plaintiff Felicia Fentrez (hereinafter Fentrez) pursuant to CPLR 3211 (a) (8) is granted.
Felicia Fentrez's cross motion for an order determining that the summons with notice filed on October 30, 2015 satisfies the requirements of CPLR 305 (b) is denied.
Felicia Fentrez's cross motion for an order deeming the subject summons amended to explicitly state facts already self evident on the face of the document is denied.
The foregoing constitutes the decision and order of this Court. October 6, 2016