Opinion
2734/18
01-09-2020
Betty MONCION, Plaintiff, v. GEEK SHOP INC., Defendant.
Pro-se Plaintiff, Betty Moncion Attorneys for Defendant, Hannum Feretic Prendergast & Merlino, LLC, 55 Broadway, Suite 202, New York, New York 10006
Pro-se Plaintiff, Betty Moncion
Attorneys for Defendant, Hannum Feretic Prendergast & Merlino, LLC, 55 Broadway, Suite 202, New York, New York 10006
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of Geek Shop Inc. (hereinafter defendant or GSI) filed on April 23, 2019, under motion sequence two, for an order: (1) dismissing the instant action commenced by Betty Moncion (hereinafter plaintiff or Moncion) pursuant to CPLR 3211 (a) (8) due to lack of personal jurisdiction; (2) granting summary judgment in GSI's favor on the issue of liability and dismissing the action pursuant to CPLR 3212 ; and (3) dismissing the action pursuant to CPLR 3124, 3126 and 3042 based on Moncion's willful disregard of GSI's discovery demands. The motion is opposed by Moncion.
Notice of Motion
Affirmation of Good Faith
Affirmation in Support
Exhibit A to H
Affidavit in Opposition
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of Moncion filed on April 26, 2019, under motion sequence three. The motion is opposed by GSI.
Notice of Motion
Affirmation in Opposition
Exhibit A to F
Reply Affirmation
BACKGROUND
On November 7, 2018, Moncion commenced the instant action, pro se, to recover damages for personal injury by filing a summons with notice (hereinafter the commencement papers) with the Kings County Clerk's Office (hereinafter KCCO). On February 22, 2019, the defendant interposed a document denominated as an answer to the summons with notice.
Moncion's summons with notice contained a statement of the following alleged facts. On November 7, 2017, Moncion went shopping at GSI with her 16 year old daughter when a female employee of GSI argued with her and threw an object that hit her in the back injuring her. She was then arrested but the court dismissed the case. Moncion seeks damages for herself and her daughter for depression, pain and suffering caused by the subject incident.
MOTION PAPERS
GSI's motion papers consist of a notice of motion, an affirmation of counsel, and eight annexed exhibits. Exhibit A is a copy of Moncion's summons with notice. Exhibit B contained a copy an affidavit of service by mail of the commencement papers and a certificate of mailing. The affidavit was signed by Angel Nieto before a notary public on November 23, 2018 and was filed on December 3, 2018 with the KCCO. Exhibit C is a copy of the document denominated as GSI's answer to Moncion's complaint. Exhibit D is a copy of the GSI's various discovery demands. Exhibit E is described as a CD that purportedly contains a video capturing part of the subject incident. Exhibit F is a copy of a letter from GSI's counsel dated March 22, 2019 addressed to Moncion. Exhibit G is an affidavit of Peter Wong, the owner of GSI. Exhibit H includes three pages of internet search results from the New York Unified Court System's Web Civil Local-Case Search.
Moncion's motion papers consist of a notice of motion and her affidavit.
GSI's opposition papers consist of an affirmation of counsel and six annexed exhibits labeled A through F. Exhibit A is a copy of Moncion's summons with notice. Exhibit B is a copy of the document denominated as defendant's answer. Exhibit C contains GSI's various discovery demands. Exhibit D is a copy of Moncion's notice of motion. Exhibit E is a copy of the motion detail from New York Unified Court System's Web Civil Supreme website. Exhibit F is a copy of GSI's motion papers under motion sequence two.
LAW AND APPLICATION
On November 7, 2018, Moncion commenced the instant action in accordance with CPLR 304 by filing a summons with notice with the KCCO. CPLR 3012 (b) provides that when an action is commenced by service of a summons without a complaint, the defendant can serve a notice of appearance with a demand for a complaint within the time provided for in CPLR 320 (a). If the defendant serves a notice of appearance without a demand for a complaint, the complaint shall be served within 20 days after the service of the notice of appearance. The only statutorily permitted response to the service of a summons with notice is the service of a notice of appearance with or without a demand for a complaint. (see , Siegel, New York Practice 4th § 60; NGH Assocs., Ltd. v. United Parcel Serv., Inc. , 17 Misc 3d 746, 748 [Sup. Ct. Kings County 2007] ).
CPLR 3011 sets forth the types of pleadings permitted in New York practice. Pleadings include a complaint, an answer, and a reply. A summons with notice is not a pleading ( Johnson v. JP Morgan Chase, N.A. , 25 Misc 3d 1245 [Sup. Ct. Kings County 2007] ).
Rather than demand a complaint pursuant to CPLR 3012 (b), GSI served Moncion with a document denominated as an answer dated February 22, 2019. CPLR 320 (a) provides that a defendant appears by serving an answer or a notice of appearance, or by making a motion which has the effect of extending the time to answer. If further provides that if the complaint is not served with the summons, the time to appear may be extended as provided in subdivision (b) of section 3012.
Moncion's affidavit of service by mail reflects that on November 21, 2018 Angel Nieto mailed GSI the commencement papers addressed to 4917 5th Avenue, Brooklyn, New York 11220. The affidavit was then filed with the KCCO on December 3, 2018.
CPLR 312-a (a) and (b) provides in pertinent part as follows:
(a) Service. As an alternative to the methods of personal service authorized by section 307, 308, 310, 311 or 312 of this article, a summons and complaint, or summons and notice, or notice of petition and petition may be served by the plaintiff or any other person by mailing to the person or entity to be served, by first class mail, postage prepaid, a copy of the summons and complaint, or summons and notice or notice of petition and petition, together with two copies of a statement of service by mail and acknowledgement of receipt in the form set forth in subdivision (d) of this section, with a return envelope, postage prepaid, addressed to the sender.
(b) Completion of service and time to answer. 1. The defendant, an authorized employee of the defendant, defendant's attorney or an employee of the attorney must complete the acknowledgement of receipt and mail or deliver one copy of it within thirty (30) days from the date of receipt. Service is complete on the date the signed acknowledgement of receipt is mailed or delivered to the sender. The signed acknowledgement of receipt shall constitute proof of service. Where personal jurisdiction has not been obtained by proper service of process, a defendant may waive the issue of lack of personal jurisdiction by appearing in an action, either formally or informally, without raising the defense of lack of personal jurisdiction in an answer or pre-answer motion to dismiss ( E. Sav. Bank, FSB v. Campbell , 167 AD3d 712, 714 [2nd Dept 2018] citing Cadlerock Joint Venture, L.P. v. Kierstedt , 119 AD3d 627, 628 [2nd Dept 2014] ). A defendant appears formally in an action by serving an answer or a notice of appearance, or by making a motion which has the effect of extending the time to answer ( CPLR 320 (a) ; E. Sav. Bank, FSB , 167 AD3d at 714 ). A defendant may appear informally by actively litigating the action before the court (Id. citing Taveras v. City of New York , 108 AD3d 614, 617 [2nd Dept 2013] ). When a defendant participates in a lawsuit on the merits, he or she indicates an intention to submit to the court's jurisdiction over the action, and by appearing informally in this manner, the defendant confers in personam jurisdiction on the court ( id. at 617 ).
CPLR 320 (b) sets forth the circumstance in which an appearance confers personal jurisdiction. Generally an appearance by the defendant is equivalent to personal service of the summons upon that defendant, unless an objection to jurisdiction under paragraph eight of subdivision (a) of CPLR 3211 is asserted by motion or in the answer. As relevant here, GSI's asserted the affirmative defense that the Court lacked personal jurisdiction over it. In accordance with CPLR 320 (b), by raising the affirmative defense in its answer and then making a timely motion to dismiss pursuant to CPLR 3211 (a) (8), GSI did not waive the defense of lack of jurisdiction.
GSI was not properly served by mail pursuant to CPLR 312—a. Moncion mailed the summons with notice and filed the affidavit of mailing with the KCCO and did nothing more. Moncion failed to send GSI, inter alia, copies of acknowledgments of receipt in the form set forth in CPLR 312—a(d). Furthermore, there is no evidence that any acknowledgment was completed and mailed or delivered to Moncion (see CPLR 312—a[b] ; Krasa v. Dial 7 Car & Limousine Service, Inc. , 147 AD3d 774, 775 [2nd Dept 2017], citing, Castillo v. JFK Medport, Inc. , 116 AD3d 899, 900 [2nd Dept 2014] ).
Inasmuch as the instant action must be dismissed pursuant to CPLR 3211 (a) (8) on the ground that the Court lacks personal jurisdiction over GSI, the branches of GSI's motion which seeks dismissal of the action pursuant to CPLR 3212, 3126, 3124 and 3042 are rendered academic.
Therefore, Moncion's motion is also rendered academic.
CONCLUSION
Greek Shop Inc.'s motion to dismiss the summons with notice pursuant to CPLR 3211 (a) (8) for lack of personal jurisdiction is granted.
Greek Shop Inc.'s motion to dismiss the summons with notice pursuant to CPLR 3212 is rendered academic.
Greek Shop Inc.'s motion to dismiss the summons with notice pursuant to CPLR 3124, 3126 and 3042 is also rendered academic.
Betty Moncion's motion is rendered academic.
The foregoing constitutes the decision and order of this Court.