ANN ARBOR GROUP LLC v. RICHARD GHERARDI (2026)

Ira Daniel Tokayer, New York, for appellant.

Law Office of Charles A. Higgs, Mount Kisco (Charles A. Higgs of counsel), for respondent.

Order, Supreme Court, New York County (Lyle E. Frank, J.), entered January 8, 2026, which denied its CPLR 3213 motion for summary judgment in lieu of complaint, unanimously affirmed, with costs.

Initially, we note that plaintiff's failure to include some relevant documents in the record on appeal does not preclude a meaningful review.  Plaintiff's arguments are based largely on prior decisions issued by the motion court.  Moreover, the record contains the notice of appeal, the order appealed from, the initial motion for summary judgment and the amended notice of motion, and the documents submitted in support of those motions (CPLR 5526;  see Ameriprise Auto & Home Ins. Co. v Cao, 148 AD3d 507, 510 [1st Dept 2017] ).

As to the merits, Supreme Court correctly found that plaintiff's January 2025 service of the notice of motion was defective, and that the court therefore did not have jurisdiction over defendant (see e.g. Miller v. 21st Century Fox Am., Inc., 180 AD3d 608, 608–609 [1st Dept 2020];  Fattarusso v Levco Am. Improvement Corp., 144 A.D.2d 626, 626 [2d Dept 1988], appeal dismissed 73 N.Y.2d 994 [1989], appeal denied 74 N.Y.2d 604 [1989] ).  The court had previously granted plaintiff's CPLR 3213 motion for summary judgment in lieu of complaint on defendant's default in December 2024 even though plaintiff had admittedly served defendant with process at the wrong address (although the court later vacated its order and restored the matter to the calendar in August 2025).  Thus, the papers served in January 2025 concerned a motion that was already adjudicated and did not constitute proper notice of a CPLR 3213 motion.

Moreover, even if plaintiff had established jurisdiction, it failed to show entitlement to summary judgment under CPLR 3213, as there remain questions of fact as to whether the note and guaranty were validly assigned to it (see 1S REO Opportunity 1, LLC v Harlem Premier Residence, LLC, 234 AD3d 401, 402 [1st Dept 2025] ).