Opinion
Index No. 508353/2024
07-16-2024
National Funding, Inc., Plaintiff, v. Shabsie Miller and Jehuda Wormser, Defendants.
Attorney for Plaintiff David Jeffrey Sussman Tenaglia & Hunt
Unpublished Opinion
Attorney for Plaintiff
David Jeffrey Sussman
Tenaglia & Hunt
Francois A. Rivera, J.
Francois A. Rivera, J.
By summons and notice of motion filed on March 22, 2024, National Funding, Inc. (hereinafter plaintiff) has moved pursuant to CPLR 3213 for summary judgment in lieu of complaint against Shabsie Miller and Jehuda Wormser (hereinafter the defendants). The motion is unopposed.
The short form order issued on June 20, 2024, and entered on June 21, 2024, which decided the instant motion is hereby vacated and replaced with the instant superseding order.
BACKGROUND
On March 22, 2024, plaintiff commenced the instant action by filing a summons and notice of motion in lieu of complaint (hereinafter the commencement papers) with the Kings County Clerk's Office (KCCO). On March 25, 2024, plaintiff filed an amended notice of motion in lieu of complaint (hereinafter amended notice of motion), which set a return date of June 20, 2024. The amended notice of motion also noticed the defendants as follows: "Take further notice that all answering papers shall be served on the undersigned on or before the 10th day after personal delivery of the summons to you."
The commencement papers allege the following facts. On April 28, 2023, a judgment was rendered in the Superior Court of the State of California, County of Orange, in favor of plaintiff and against the defendants in the sum of $97,920.02 (hereinafter the California judgment) based on the defendants' alleged breach of a contract with the plaintiff. Plaintiff alleges that the instant action is to make the California judgment a judgment of this State and to enforce and collect it. Plaintiff further alleges that the judgment remains totally unpaid, that the defendants have a place of residence in Kings County, New York, and that there is no defense to the action.
MOTION PAPERS
The commencement papers consist of the summons, a notice of motion for summary judgment in lieu of complaint, an amended notice of motion for summary judgment in lieu of complaint, an affirmation of plaintiff's counsel, an exemplified copy of the California judgment, and affidavits of service of the commencement papers.
LAW AND APPLICATION
"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, 1025 [Sup Ct, Nassau County 2006], citing Flushing Natl. Bank v Brightside Mfg. Inc., 59 Misc.2d 108, 109 [Sup Ct, Queens County 1969]). "As with a plenary action, jurisdiction is obtained over an individual 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, 1025 [Sup Ct, Nassau County 2006]).
CPLR 3213 provides that "[t]he 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" (CPLR 3213). If the defendant is a natural person who is served pursuant to CPLR 308 (2) or (4), the minimum amount of time between service of the summons and motion papers and the return date is forty days (s ee David D. Siegel, Prac Commentaries, McKinney's Cons Law of NY, C3213:15, C3213:6 [noting this aspect of CPLR 3213 practice]). CPLR 320 (a) gives a defendant served in this manner thirty days from completion of service to appear (see CPLR 320 [a]). Service under CPLR 308 (2) or (4) is complete ten days after the affidavit of service is filed with the county clerk (see CPLR 308 [2]; see CPLR 308 [4]).
"The burden of proving that personal jurisdiction was acquired over a defendant rests with the plaintiff" (Nationstar Mtge., LLC v Einhorn, 185 A.D.3d 945, 946 [2d Dept 2020], citing Wells Fargo Bank, N.A. v Decesare, 154 A.D.3d 717, 717 [2d Dept 2017]).
Here, on April 8, 2024, plaintiff filed an affidavit of its process server with the KCCO averring service on defendant Jehuda Wormser (hereinafter Wormser) pursuant to CPLR 308 (2). On April 29, 2024, plaintiff filed an affidavit of its process server with the KCCO averring service on defendant Shabsie Miller (hereinafter Miller) pursuant to CPLR 308 (4). Assuming service upon the defendants was proper, service upon Wormser was completed on April 18, 2024 and service upon Miller was completed on May 9, 2024, ten days after the filing of their respective affidavits of service.
In accordance with CPLR 320 (a), Wormser had until May 20, 2024 to answer the CPLR 3213 motion, computed as follows. Thirty days after April 18, 2024 was May 18, 2024; however, since May 18, 2024 was a Saturday, Wormser had until May 20, 2024, the following Monday, to answer (see General Construction Law § 25-a). In accordance with CPLR 320 (a), Miller had until June 10, 2024, to answer the CPLR 3213 motion, computed as follows. Thirty days after May 9, 2024 was June 8, 2024; however, since June 8, 2024 was a Saturday, Miller had until June 10, 2024, the following Monday, to answer (see General Construction Law § 25-a).
Plaintiff made the instant motion returnable on June 20, 2024, and directed each defendant to serve all answering papers on or before the 10th day after personal delivery of the summons upon each defendant. By demanding an answer on or before the tenth day after personal delivery of the summons to the defendants, the plaintiff failed to provide the defendants with sufficient time to answer, which is within thirty days after service is complete if defendants are served under CPLR 308 (2) or (4) (Goldstein v Saltzman, 13 Misc.3d 1023, 1025 n 1 [Sup Ct, Nassau County 2006]; see CPLR 320 [a]; see CPLR 3213). By this specific direction, plaintiff did not give either defendant the statutorily required time to appear and to respond to the motion (see CPLR 320 [a]).
Plaintiff was directing the defendants to serve their answer no later than 10 days after service of the commencement papers upon them was completed.
A failure to give a defendant the statutorily mandated time to appear and answer a motion for summary judgment in lieu of complaint compels denial of the motion (see Imbriano v Seaman, 189 Misc.2d 357, 360-361 [Nassau Dist Ct, 1st Dist 2001]; Goldstein v Saltzman, 13 Misc.3d 1023, 1025 [Sup Ct, Nassau County 2006]) or dismissal where the motion is made "returnable on a date prior to the expiration of the time within which the defendant had to appear in the action" (see Bhanti v Jha, 140 A.D.3d 685, 685 [2d Dept 2016]) . Here, the Court denies plaintiff's motion for not giving defendants sufficient time to answer. It is therefore unnecessary to determine whether the method of service on the defendants pursuant to CPLR 308 (2) or (4) was properly effectuated.
When a plaintiff's CPLR 3213 motion is denied, the moving papers shall be deemed the complaint (see Rogers McCarron & Habas, P.C. v Acker, 189 A.D.3d 1487, 1488 [2d Dept 2020]; see CPLR 3213).
In the instant case, there were no answering papers to deem an answer (see Rogers McCarron & Habas, P.C. v Acker, 189 A.D.3d 1487, 1488 [2d Dept 2020]).
CONCLUSION
The motion pursuant to CPLR 3213 by plaintiff National Funding, Inc. for summary judgment in lieu of complaint against defendants Shabsie Miller and Jehuda Wormser is denied.
The instant motion papers by National Funding, Inc. is deemed the summons and complaint.
The foregoing constitutes the decision and order of this Court.