GOLDSTEIN v. SALTZMAN

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Supreme Court, Nassau County.

Robert J. GOLDSTEIN, Plaintiff, v. Louis SALTZMAN, Defendant.

Decided: September 21, 2006

Kevin D. Maloney, Esq., Scarsdale, Counsel for Plaintiff. No Appearance for Defendant.

Plaintiff Robert J. Goldstein (“Goldstein”) moves for summary judgment in lieu of complaint on a promissory note.

BACKGROUND

Goldstein moves for summary judgment in lieu of complaint.   The document upon which Goldstein proceeds appears to be a letter dated August 17, 1999, addressed to Mr. and Mrs. Robert J. Goldstein.   The letter reads:

Please accept this as my promise to repay a total of $87,000 to you at terms and interest to be agreed upon at no less than the current prime rate of interest.

Yours truly,

s/

Louis Saltzman

President

Goldstein avers that prior to August 17, 1999, the date of the letter, he loaned to Louis Saltzman (“Saltzman”) various sums over time totaling $87,000.   As of April 24, 2006, Saltzman repaid the sum of $6,000.   A balance due of $81,000 remains.   Goldstein seeks to recover this sum with interest from August 17, 1999.

DISCUSSION

While the purported promissory note raises certain issues including why Mrs. Goldstein is not a named Plaintiff, the Court need not reach such issues at this time.

CPLR 3213 provides, “The 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.”   Thus, if service is made by personal delivery to a Defendant with New York, the earliest the motion can be made returnable is twenty (20) days after service of the summons, notice of motion and supporting papers.   Siegel, New York Practice 4th § 291;  and McKinney's Practice Commentaries C3213:5.

CPLR 3213 further provides, “If the plaintiff sets the hearing date of the motion later than the minimum time therefore, he may require the defendant to serve a copy of his answering papers upon him within such extended period of time, not exceeding ten days, prior to such hearing date.”

This case presents an issue which is not directly addressed by the statute.   How should the court treat a motion for summary judgment in lieu of complaint where the plaintiff gives the defendant the minimum notice required by statute but demands answering papers ten days before the return date?

CPLR 3213 is a hybrid procedure incorporating certain elements of an action and certain elements of motion practice.  Flushing National Bank v. Brightside Manufacturing Inc., 59 Misc.2d 108, 298 N.Y.S.2d 197 (Sup.Ct. Queens Co.1969).

As with a plenary action, jurisdiction is obtained over the 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.  CPLR 3213 provides, “The 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.”

Thus, in a 3213 motion, the minimum amount of time the plaintiff must give the defendant to appear and oppose the motion is dependent upon the date and method of service, See, Siegel, New York Civil Practice 4th § 291;  1 New York Civil Practice:  CPLR ¶ 3213.03;  and McKinney's, Practice Commentaries C3213:5.1

In calculating the time in which a defendant may respond, CPLR 3213 diverges from the procedure in a plenary action and begins to resemble motion practice under CPLR Article 22.   As with motion practice, plaintiff must select a specific return date on which the motion is to heard.   The notice of motion accompanying the summons must contain the same information as would be contained in a notice of motion served pursuant to CPLR 2214(a);  to wit:  the court before which the motion is being made, the relief sought, the date, time and place of the hearing of the motion, the papers being filed in support of the motion.   The only statutory requirement or guidance as to the return date of a 3213 motion is that the minimum time to appear in the action is based upon the manner of personal service as provided in CPLR 320(a).  (See, footnote 1.)

As with CPLR Article 22 motion practice, a party moving pursuant to CPLR 3213 can demand answering papers be served in advance of the return date.2  A plaintiff moving for summary judgment in lieu of complaint pursuant to CPLR 3213 may demand answer papers up to ten days prior to the return date of the motion.   A plaintiff seeking to obtain answering papers up to ten days in advance of the return date, must add that number of days to the return date.3

When proceeding under CPLR 3213, the plaintiff must pick a return date for the motion when the papers are prepared and action is commenced even though the plaintiff does not know when or how the defendant will be served.   Therefore, a plaintiff who proceeds under CPLR 3213 should make certain that the return date of the motion is sufficiently distant from the date of service so that the defendant has adequate time to appear and respond.   See, Siegel, New York Civil Practice 4th § 291, and McKinney's:  Practice Commentaries C3213:5.

Where the defendant is not given the statutorily required time but appears and opposes the motion on the merits, the court may disregard the short service and decide the merits on the motion.  Flushing National Bank v. Brightside Manufacturing Inc., supra.   By appearing and contesting on the merits, the defendant waives any issue regarding the adequacy of the notice.   Plaza 400 Owners Corp. v. Resnicoff, 168 Misc.2d 837, 640 N.Y.S.2d 984 (Civ.Ct.N.Y.Co., 1986).

Generally, the failure to give proper notice of a motion deprives the court of jurisdiction to hear the motion.  Bianco v. Ligreci, 298 A.D.2d 482, 748 N.Y.S.2d 503 (2nd Dept.2002);  Golden v. Golden, 128 A.D.2d 672, 513 N.Y.S.2d 171 (2nd Dept.1987);  and Burstin v. Public Service Mutual Ins. Co., 98 A.D.2d 928, 471 N.Y.S.2d 33 (3rd Dept.1983).   Motion papers must be served in the manner required by the statute.   See, Welch v. State of New York, 261 A.D.2d 537, 690 N.Y.S.2d 631 (2nd Dept.1999) (service by certified mail, return receipt requested when the statute requires service by regular first class mail deprives the court of jurisdiction to hear the motion).   Motion papers must also be served so as to give the non-moving party the required number of days in which to file opposing papers.  Morabito v. Champion Swimming Pool Corp., 18 A.D.2d 706, 236 N.Y.S.2d 130 (2nd Dept.1962) (seven days notice as opposed to the eleven days required by the then applicable Civil Practice Act rendered the motion jurisdictionally void).

When the Defendant has not been provided with the statutorily required time in which to answer a motion made pursuant to CPLR 3213, the court lacks jurisdiction to hear the motion, the motion must be denied without prejudice and the action dismissed.  Putnam County National Bank of Carmel v. Bischofsberger, 82 Misc.2d 915, 371 N.Y.S.2d 308 (Co.Ct., Putnam Co.1975);  Tokyo Leasing (U.S.A.) Inc. v. G-IV Wash, Clean & Dry, Inc., 4 Misc.3d 164, 779 N.Y.S.2d 892 (Dist. Ct., Nassau Co.2004);  and Kemp v. Hinkson, 73 Misc.2d 76, 341 N.Y.S.2d 527 (Dist. Ct., Suffolk Co.1973).4

The notice requirement for opposition papers under CPLR 3213, this Court believes, most closely resembles motion practice.   If a plaintiff wants to receive answering papers in advance of the return date, then plaintiff must give defendant additional time in which to respond.   Plaintiff cannot set the return date of the motion at the minimum time and demand opposition papers ten days in advance of the return date.   Such a determination would be contrary to the express language of CPLR 3213 which provides that if plaintiff allows more than the minimum time for the hearing date of the motion, plaintiff can then demand answering papers up to ten days prior to the return date of the motion.

In this case, the motion papers were served on Saltzman twenty-one (21) days prior to the return date of the motion.   Plaintiff demanded answering papers ten days prior to the return date of the motion.   The clear language of CPLR 3213 establishes that if Goldstein wanted to receive answering papers ten days prior to the return date of the motion, the motion should have been returnable no less than thirty days from the date of service.   See, McKinney's Practice Commentaries, C3213:6.

CPLR 3213 gives the plaintiff an option;  that is, either make the motion returnable as soon as possible and permit the defendant to file its opposition papers on the return date or demand opposition papers in advance and give the defendant additional time in which to oppose the motion.   Plaintiff cannot give defendant the minimum amount of time permitted to oppose the motion and demand opposition in advance.   Because Goldstein demanded the service of answering papers ten days prior to the return date of the motion, Saltzman was not provided with the statutorily required time in which to respond.

Where plaintiff fails to provide the defendant with the statutorily required time to respond, the motion should be denied and the action dismissed.   See, National Bank of Canada v. Skydell, 181 A.D.2d 645, 581 N.Y.S.2d 1005 (1st Dept.1992);  and 1 New York Civil Practice:  CPLR ¶ 3213.02.

Denial of the motion and dismissal of this action in this case seems to be a harsh result in light of the fact that Saltzman defaulted herein.   Nevertheless, adherence to the notice requirements serves to protect the due process rights of parties subject to short-served motions, including 3213 motions.

Accordingly, it is,

ORDERED, that Plaintiff's motion for summary judgment is denied without prejudice and the action is dismissed.

This constitutes the decision and Order of the Court.

FOOTNOTES

1.   If the Defendant is a natural person who is served by personal delivery, CPLR 320(a) gives the Defendant twenty days after service to appear in the action.If, however, the Defendant in an action commenced for summary judgment in lieu of complaint is a corporation that is served by delivering a copy of the summons and motion papers upon the Secretary of State as statutory agent for the corporation [Business Corporation Law § 306], the minimum amount of time between service and the return date of the motion is thirty days from the date of service since CPLR 320(a) gives a corporate Defendant served in this manner thirty days to appear.If the Defendant is a natural person who is served pursuant to CPLR 308(2) or CPLR 308(4), the minimum amount of time the between service of the summons and motion papers and the return date is forty days.  CPLR 320(a) gives a Defendant served in this manner thirty days from completion of service to appear.   Service is complete ten days after the affidavit of service is filed with the county clerk.

2.   CPLR 2214(b) permits a movant to demand opposition papers at least seven days prior to the return date of the motion.   If movant demands opposition papers at least seven days prior to the return date of the motion, the motion must be returnable a minimum of twelve days after the motion papers are served.   See, Siegel, New York Practice 4th § 247.

3.   If the Plaintiff moves under CPLR 3213 and wants answering papers seven days in advance of the return date of the motion, the motion must be personally served at least twenty seven days prior to the return date.   See, Siegel, New York Practice 4th § 291.   If Plaintiff wants to receive answering papers ten days in advance of the return date, the motion can be returnable no fewer than thirty days after service is made.   See, McKinney's, Practice Commentaries C3213:6.

4.   The Court notes that there is conflicting case law.   In Plaza 400 Owners Corp. v. Resnicoff, supra and Imbriano v. Seaman, 189 Misc.2d 357, 731 N.Y.S.2d 596 (Dist. Ct., Nassau Co.2001), the respective courts held that the failure to provide the defendant with adequate time in which to answer the motion made pursuant to CPLR 3213 was not jurisdictional.   However, the discussion of whether a short-service of the motion in Plaza 400 Owners Corp. is dicta since the defendant appeared and opposed the motion both on the merits and on procedural grounds.   The decision in Imbriano is based upon the dicta of 400 Plaza Owners Corp. Imbriano and Tokyo Leasing constitute conflicting decisions from the same court.   In Imbriano, the short-served motion was submitted without opposition.   The Imbriano court chose to deny the motion and treat the motion papers as a complaint.   Such an approach raises additional questions.   Can the defaulting defendant now interpose an answer?   If so, how much time does the defendant have to answer?   If the defendant fails to interpose an answer, may the plaintiff move for leave to enter a default judgment?

LEONARD B. AUSTIN, J.

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