Opinion
Index No. 653054/2023
10-10-2023
Eloida Vazquez and JAQUELINE GAMEZ, Plaintiffs, v. Fifth Avenue Men's Suits LLC (D/B/A FIFTH AVENUE MEN'S SUITS), DESIGNER MEN'S SUITS INC. (D/B/A FIFTH AVENUE MEN'S SUITS), AMIR HASSAN, and ZIAD MADKOUR, Defendants.
CSM Legal, P.C., New York, NY (Catalina Sojo of counsel), for plaintiffs. No appearance for defendants.
Unpublished Opinion
CSM Legal, P.C., New York, NY (Catalina Sojo of counsel), for plaintiffs.
No appearance for defendants.
Gerald Lebovits, J.
Gerald Lebovits, J.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 2 were read on this motion for SUMMARY JUDGMENT IN LIEU OF COMPLAINT.
Plaintiffs, Eloida Vazquez and Jacqueline Gamez, bring this motion-action under CPLR 3215 to collect on an allegedly outstanding balance on a settlement agreement between them and defendants, Fifth Avenue Men's Suits LLC, Designer Men's Suits Inc., Amir Hassan, and Ziad Madkour. The motion is denied, and the action is dismissed as against defendants Fifth Avenue Men's Suits and Designer Men's Suits for lack of personal jurisdiction.
1. Plaintiffs have not established that the settlement agreement on which they rely is an instrument for the payment of money only, as required to qualify for the accelerated procedure provided by CPLR 3213.
If the instrument relied on by the movant "requires something in addition to defendant's explicit promise to pay a sum of money, CPLR 3213 is unavailable." (Weissman v Sinorm Deli, Inc., 88 N.Y.2d 437, 444 [1996].) The bulk of the settlement agreement at issue provides for defendants' payment in installments of the settlement amount. (See NYSCEF No. 4 at 1-13.) However, the settlement agreement also contains a mutual non-disparagement clause. (See id. at 14 § 7.) Plaintiffs do not attempt to establish that defendants' payment obligation is unaffected by whether plaintiffs comply with the terms of that clause. Absent a showing of an unconditional payment obligation, plaintiffs cannot obtain summary judgment under CPLR 3213. (See Park Union Condominium v 910 Union St., LLC, 140 A.D.3d 673, 673-674 [1st Dept 2016].)
2. Even if the settlement agreement were an instrument for the payment of money only, plaintiffs have not provided proof in admissible form of defendants' breach of their settlement obligations. Plaintiffs rely on an affirmation of their counsel. (See NYSCEF No. 3.) But the attorney providing that affirmation does not identify the basis of her knowledge of defendants' failure to pay several installments under the agreement (and their failure to cure that default). Nor does the affirmation attach bank statements or other documentary evidence of defendants' breach. Counsel's representations, if based on documentary evidence or statements from law-firm colleagues, rather than personal knowledge, are inadmissible hearsay that cannot support summary judgment. (See Wells Fargo Bank, NA v Oziel, 196 A.D.3d 618, 621 [2d Dept 2021]; Bank of NY Mellon v Gordon, 171 A.D.3d 197, 205-206 [2d Dept 2019].) And counsel's affirmation does not enable this court to determine one way or the other.
The attorney providing the affirmation is not the attorney to whom payments were to be delivered under the agreement. (See NYSCEF No. 4 at 1-13 [providing installment-by-installment payment instructions].)
3. This court lacks personal jurisdiction over defendants Fifth Avenue Men's Suits and Designer Men's Suits. A CPLR 3213 motion may not be made returnable before the defendant's time to appear under CPLR 320 expires. (See Alpine Capital Bank v Estate of Shiah, 2020 NY Slip Op 50587[U], at *3 [Sup Ct, NY County May 20, 2020].) Plaintiffs served these two defendants by delivery of process to the Secretary of State on June 28, 2023. (See NYSCEF Nos. 9, 10 [affidavits of service].) Defendants had 30 days from delivery to appear and respond, until July 28, 2023. (See CPLR 320 [a].) But plaintiff made its motion returnable on July 26, 2023, two days earlier. (See NYSCEF No. 2 at 1.) Plaintiffs' failure to give Fifth Avenue Men's Suits and Designer Men's Suits sufficient advance notice of the motion, as required by CPLR 320, is a "fatal jurisdictional defect." (Bhanti v Jha, 140 A.D.3d 685, 686 [2d Dept 2016].)
Plaintiff's claims against defendant Hassan are not subject to dismissal on this ground. Plaintiff served Hassan by personal delivery under CPLR 308 (1) on July 3, 2023. (NYSCEF No. 11 [affidavit of service].) Under CPLR 320 (a), Hassan's deadline to appear and respond was 20 days from delivery (rather than 30)- i.e., July 24, 2023, two days before the return date. With respect to defendant Madkour, plaintiff has not provided an affidavit of service. Given the court's determination that plaintiffs have not shown entitlement to summary judgment regardless, and the absence of a jurisdictional defect evident on the face of the record, the court declines to reach at this time the issue of personal jurisdiction over defendant Madkour.
The 20th day of the period, July 23, 2023, was a Sunday, which extended the deadline until the next business day, July 24. (General Construction Law § 25-a.)
Accordingly, it is
ORDERED that plaintiffs' CPLR 3213 summary-judgment motion is denied; and it is further
ORDERED that plaintiffs' claims against defendants Fifth Avenue Men's Suits and Designer Men's Suits are dismissed for lack of personal jurisdiction, no costs; and it is further
ORDERED that plaintiffs' claims against defendants Amir Hassan and Ziad Madkour are severed and shall continue; and it is further
ORDERED that plaintiffs' motion papers are deemed the complaint and supporting exhibits as against defendants Hassan and Madkour; and it is further
ORDERED that upon service of a copy of this order with notice of its entry, Hassan and Madkour shall have 30 days from service to appear and respond to the complaint; and it is further
ORDERED that plaintiffs shall serve a copy of this order with notice of its entry on all defendants by certified mail, return receipt requested, directed to their respective last-known addresses; and on the office of the County Clerk, which shall enter judgment accordingly.