Gregorio Gonzalez, Plaintiff, v. Sandy De Jesus Marte, Defendant. (2026)

The following e-filed documents, listed in NYSCEF by document numbers 1-10, were read on this motion by Plaintiff Gregorio Gonzalez ("Gonzalez" or "Plaintiff") for an order pursuant to CPLR 3213 granting summary judgment in lieu of complaint in its favor against Defendant Sandy De Jesus Marte ("Marte" or "Defendant"). Defendant has failed to submit opposition to the motion despite having been served with the same.

Upon the foregoing papers and for the reasons stated herein, Plaintiff's motion shall be denied and the action dismissed without prejudice.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

This action, which arises from a dispute concerning alleged nonpayment of a promissory note (the "Note"), was commenced by Plaintiff's filing of the Summons and Notice of Motion for Summary Judgment in Lieu of Complaint on May 6, 2026 (see NYSCEF Doc. Nos. 1-2).

Pursuant to CPLR 3213, Plaintiff moves for summary judgment in lieu of complaint. In support of his motion, Plaintiff submits: (1) a memorandum of law ("Plf's Mem." [NYSCEF Doc. No. 3]) (2) an affidavit from Gonzalez dated May 6, 2026 ("Gonzalez Aff." [NYSCEF Doc. No. 4]); (3) a copy of the Note and the Security Agreement executed by Defendant (NYSCEF Doc. No. 5); and (4) a copy of Plaintiff's reconciliation report of the balances allegedly owed (NYSCEF Doc. No. 6).

In his affidavit, Gonzalez avers that

[o]n or about September 8, 2023, [he] sold [his] stock shares in Kon'to Euro Caribbean Cuisine Corp. to the Defendant Sandy de Jesus Marte. As part of the sale, [he] gave Sandy de Jesus Marte a promissory note in the amount of Five Hundred Thirty Thousand Dollars ($530,000.00) that was to be paid in four installments . . . [and] [a]lthough [he] demanded payment several times, Mr. Sandy de Jesus Marte has ignored his obligations under the promissory note. He paid a total of $410,000.00 and the remaining principal balance of $120,000.00 was not paid. Over the past few months, we have engaged with Mr. Marte in settlement negotiations. We reviewed his account with our accountant and we reconciled it with some outstanding charges of the business in which we provided credits. Annexed hereto as Exhibit B is a reconciliation report showing that the balance due and owing as of March 31, 2026 is $103,478.71, which includes the late fees, interest, and legal and professional fees. As such we request judgment in the amount of $103,478.71 plus subsequent interest and legal fees and costs. Mr. Marte has refused to pay the balances owed and we are left with no alternative but to file this action again in order to collect what is properly due and owing (Gonzalez Aff. at ¶¶ 3-4).

In his memorandum of law, Plaintiff summarizes the above facts and argues that there is no material factual issues in dispute, and as such, requests that the Court grant his motion in its entirety and award him the sum certain amount of $103,478.71 plus accrued unpaid interest beginning from March 31, 2026 at a rate of interest equal to a daily rate of $27.39, as well as including his costs and reasonable fees, along with any other relief the Court deems just and proper (Plf's Mem. at ¶¶ 1-6).

DISCUSSION

CPLR 3213 allows an action based upon an instrument for the payment of money only to be commenced with a motion for summary judgment, rather than a complaint. This procedure is intended to provide a speedy and effective means for resolving a presumptively meritorious claim (see, e.g., Banco Popular N.A. v Victory Taxing Mgt., Inc., 1 NY3d 381 [2004]). The proponent of a CPLR 3213 motion establishes a prima facie entitlement to judgment by offering proof, in evidentiary form, of the instrument for payment of money in question and of the failure of the defendant to pay in accordance with the terms of the instrument. If this showing is made, the burden then shifts to the defendants to come forward with evidentiary facts demonstrating the existence of a material issue of fact which would defeat a motion for summary judgment (see, e.g., Fleet Bank v M & Z Handwear, Inc., 308 AD2d 507 [2d Dept 2003]; Moezina v Baroukhian, 247 AD2d 452 [2d Dept 1998]; DeVito v Benjamin, 243 AD2d 600 [2d Dept 1997]; Alicanto v Woolverton, 142 AD2d 703 [2d Dept 1988], lv denied 73 NY2d 702 [1988]; accord Banco Popular N.A., 1 NY3d at 383; Mastro v Carroll, 296 AD2d 802 [3d Dept 2002]).

Critically, 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). CPLR 320(a) provides that "[a]n appearance shall be made within twenty days after service of the summons, except that if the summons was served on the defendant . . . pursuant to section 303, subdivision two, three, four or five of section 308 . . . [then] the appearance shall be made within thirty days after service is complete" (CPLR 320[a] [emphasis added]). Service is deemed complete 10 days after an affidavit of service is filed with the county clerk, thus, "[i]f the Defendant is a natural person who is served pursuant to CPLR 308(2) or CPLR 308(4), the minimum amount of time . . . between service of the summons and motion papers and the return date is forty days" (Goldstein v Saltzman, 13 Misc 3d 1023, 1026 n 2 [Sup Ct, Nassau County 2006]).

Failure of a party moving for summary judgment in lieu of a complaint to set an appropriate return date which falls before the responding party is statutorily required to appear has been characterized as "short service" (see Pinelli v Shorenstein, 85 Misc 3d 1280[A], 2025 NY Slip Op 50754[U] [Sup Ct, NY County 2025]; Emirates Islamic Bank PJSC v NeoPharma LLC, 84 Misc 3d 1217[A], 2024 NY Slip Op 51461[U] [Sup Ct, NY County 2024]; Goldstein, 13 Misc 3d 1023; 183 Siegel's Practice Review, THE CPLR 3213 SUMMARY JUDGMENT MOTION/ACTION Demanding Answering Papers Earlier Than Permissible Is Jurisdictional Defect and Mandates Dismissal Even If D Has Defaulted [Mar. 2007]). Short service of a motion for summary judgment in lieu of complaint has been treated by the Appellate Division, Second Department as a "fatal jurisdictional defect" requiring denial of the motion and dismissal of the action without prejudice (Bhanti v Jha, 140 AD3d 685, 686 [2d Dept 2016]; see Segway of NY, Inc. v Udit Group, Inc., 120 AD3d 789 [2d Dept 2014]). Such an approach exists due to both the dual motion-action nature of CPLR 3213 motions and to protect the due process rights of defendants (compare Goldstein, 13 Misc 3d at 1028 [denying the motion and dismissing the action without prejudice because of short service on defaulting defendants and stating that "adherence to the notice requirements serves to protect the due process rights of parties subject to short-served motions, including 3213 motions"] with Plaza 400 Owners Corp. v Resnicoff, 168 Misc 2d 837, 839 [Civ Ct, NY County 1996] ["where the adverse party opposed on the merits, evidencing adequate notice, short service has been deemed waived"]; see Blue Lagoon, LLC v Reisman, 214 AD3d 938 [2d Dept 2023]).

However, short service of a motion for summary judgment in lieu of complaint may be cured in certain scenarios. For example, in Blue Lagoon, LLC (214 AD3d 938), the Second Department considered a CPLR 3213 motion where the original return date was set earlier than the defendant was statutorily required to appear in the action. There, the return date of the plaintiff's motion was administratively adjourned several times (id.). The Court further provided that "[t]o the extent that the plaintiff's original notice of motion for summary judgment in lieu of complaint provided inadequate time within which the defendants could file answering papers, the plaintiff filed an amended notice of motion for summary judgment in lieu of complaint, of which the defendants do not deny service" (id. at 941-942). Therefore, the Court held that "under the particular circumstances of this case, the plaintiff's failure to provide an adequate return date on its original notice of motion was not a fatal defect that deprived the Supreme Court of jurisdiction over the action" (id. at 942). In another case, Plaza 400 Owners Corp. (168 Misc 2d 837), the plaintiff set a return date which fell before the defendant was required to appear. While the Civil Court recognized that "a short-served motion, when submitted on default, should be denied," it asserts that "short service has been viewed as a nonfatal irregularity if the opponent mailed a response before the return date" and found that the same applied in that case (id. at 839; see National Microtech, Inc. v Satellite Video Servs., Inc., 107 AD2d 860 [3d Dept 1985], lv dismissed 65 NY2d 637 [1985]). In the instant action, there have been no such adjournments, nor has Defendant filed opposition to Plaintiff's motion or otherwise made an appearance.

Here, to support Plaintiff's contention that Defendant was properly served with the Notice of Electronic Filing, Summons, Notice of Motion for Summary Judgment in Lieu of Complaint, Plaintiff's Memorandum of Law, along with its supporting papers, Plaintiff filed two affidavits of service (NYSCEF Doc. Nos. 9-10). As his first attempt, Plaintiff's process server, Carlos Diaz, attempted service pursuant to CPLR 308 at Defendant's last known residence, 513 W 159th St, Apt 5A, New York, NY 10032, but indicated that he "was unable with due diligence to find [Defendant] or a person of suitable age and discretion thereat, having called there on May 12, 2026 at 7:45 a.m. and May 11 at 7:15 p.m." and leaving a copy of the same at the Defendant's last known residence (NYSCEF Doc. No. 9 at 1). Thereafter, Plaintiff's process server mailed a copy of the same to Defendant's last known residence in accordance with CPLR 308(4) (id.). However, the Second Department has routinely held that "[s]ervice pursuant to CPLR 308(4) . . . may be used only where service under CPLR 308(1) or (2) cannot be made with 'due diligence' " and that " '[t]he requirement of due diligence must be strictly observed' " (Ramirez v Escobar, 228 AD3d 791, 792 [2d Dept 2024] [citations omitted]). While not expressly defined, the "due diligence" requirement may be met through a process server's several attempts "at times when [the defendant] could reasonably have been expected to be found there, including attempts on a late weekday evening, an early weekday morning, a weekend evening, and a weekday afternoon" (Wilmington Trust Co. v Gewirtz, 193 AD3d 1110, 1112 [2d Dept 2021]). In this action, Plaintiff's process server's two attempts at times when Defendant could reasonably be expected to be in transit to or from work during the week—and absent an attempt on the weekend—is insufficient to meet CPLR 308's "due diligence" requirement as to the first affidavit of service (see NYSCEF Doc. No. 9; Spath v Zack, 36 AD3d 410, 413 [1st Dept 2007] [finding that the due diligence requirement was not met where "[n]one of [the] attempts [were] made on a weekend"]).

In contrast, Plaintiff's second affidavit of service demonstrates sufficient compliance with CPLR 308(2) through his process server's in-hand delivery of the Notice of Electronic Filing, Summons, Notice of Motion for Summary Judgment in Lieu of Complaint, Plaintiff's Memorandum of Law, along with its supporting papers at 261 Dyckman Street, New York, NY 10034 upon Julia Gomez, an employee of Bravo 56 Bar & Grill and a person of suitable age and discretion, who represented "that the Defendant owned and operated the business" (NYSCEF Doc. No. 10 at 1). Subsequently, Plaintiff's process server mailed a copy of the same documents to 261 Dyckman Street, New York, NY 10034 in the manner prescribed in CPLR 308(2) (id.).

Plaintiff filed the second affidavit of service on May 28, 2026 (see id.). CPLR 3213 requires that Plaintiff set a "minimum time that [Plaintiff's] motion shall be noticed to be heard . . . as provided by subdivision (a) of rule 320 for making an appearance, depending upon the method of service." As Plaintiff's process server effectuated service under CPLR 308(2) by serving a person of suitable age and discretion at Defendant's actual place of business, CPLR 320(a) requires that Defendant make an appearance "within thirty days after service is complete." Service is marked complete 10 days following the filing of the affidavit of service (see HSBC Bank USA, N.A. v Johnson, 234 AD3d 675 [2d Dept 2025]), thus, Plaintiff must have provided a minimum time for Defendant to make an appearance of at least 40 days from May 28, 2026 or, in other words, set a minimum return date or deadline for filing answering papers for July 7, 2026.¹

In this case, Plaintiff set the return date for May 29, 2026, and required service of answering papers or any notices of cross-motion from Defendant 10 days prior to that date (see NYSCEF Doc. No. 2). Since Plaintiff requested service of answering papers 10 days prior to May 29, 2026, or by May 19, 2026, Plaintiff short-served his motion for summary judgment in lieu of complaint by at least 49 days. Unlike in the cases of Blue Lagoon, LLC (214 AD3d 938) or Plaza 400 Owners Corp. (168 Misc 2d 837), there have been no administrative or stipulated adjournments of the motion's return date or Defendant's time to file responding papers, nor has Defendant filed responding papers such that due process considerations would not be implicated. Therefore, because Plaintiff short-served his motion for summary judgment in lieu of complaint, the Court lacks personal jurisdiction over Defendant.

Accordingly, because the Court lacks personal jurisdiction over Defendant, Plaintiff's motion for summary judgment in lieu of complaint is hereby denied and the action dismissed without prejudice (see Bhanti, 140 AD3d 685; Segway of NY, Inc., 120 AD3d 789; Goldstein, 13 Misc 3d 1023).

CONCLUSION

Accordingly, for the reasons stated and based upon the papers aforesaid, it is hereby

ORDERED that the motion by Plaintiff Gregorio Gonzalez for an order granting him summary judgment in lieu of complaint against Defendant Sandy De Jesus Marte is denied and the action dismissed without prejudice.

The foregoing constitutes the Decision and Order of this Court.

Dated: August 6, 2026

White Plains, New York

E N T E R:

HON. GRETCHEN WALSH, J.S.C.

FOOTNOTES

1.   CPLR 3213 allows for parties moving for summary judgment in lieu of complaint to require service of answering papers, which constitutes an "appearance," up to 10 days prior to the return date. However, in doing so, the moving party must extend the return date at least 10 days from the "minimum time" required when setting the return date (see 183 Siegel's Practice Review, THE CPLR 3213 SUMMARY JUDGMENT MOTION/ACTION Demanding Answering Papers Earlier Than Permissible Is Jurisdictional Defect and Mandates Dismissal Even If D Has Defaulted [Mar. 2007] ["The plaintiff can add up to 10 days to the period, and as many days as the plaintiff adds - giving the defendant a longer responding time than the required minimum — that's how many days prior to the return day the plaintiff can require the defendant to serve answering papers"]).

Gretchen Walsh, J.