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Supreme Court, Appellate Division, Second Department, New York.

HSBC BANK USA, NATIONAL ASSOCIATION, etc., Respondent, v. Joyce MANIATOPOULOS, Appellant, et al., Defendants.


Decided: August 21, 2019

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, CHERYL E. CHAMBERS, ROBERT J. MILLER, JJ. Henry Kohn, Brooklyn, NY, for appellant. Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore, N.Y. (Ruth O'Connor of counsel), for respondent.


ORDERED that the order dated February 24, 2016, is affirmed, with costs.

In November 2013, the plaintiff commenced this action to foreclose a mortgage.  The defendant Joyce Maniatopoulos served her answer, by mail, on December 23, 2013.  Sixty-five days later, Maniatopoulos moved pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her on the ground of improper service.  The Supreme Court granted Maniatopoulos's motion to dismiss, and the plaintiff moved for leave to reargue.  The court granted reargument and, upon reargument, vacated its prior order and thereupon denied Maniatopoulos's CPLR 3211(a)(8) motion as untimely.  Maniatopoulos appeals.

CPLR 3211(e) provides that “an objection that the summons and complaint ․ was not properly served is waived if ․ the objecting party does not move for judgment on that ground within sixty days after serving the pleading.”  CPLR 2103(b)(2) provides that “where a period of time prescribed by law is measured from the service of a paper and service is by mail, five days shall be added to the prescribed period if the mailing is made within the state.”  The purpose of the CPLR 2103(b)(2) extension is to compensate for the delay in receipt of the papers served that is inherent in service by mail (see Simon v. Usher, 17 NY3d 625, 628–629;  Sultana v. Nassau Hosp., 188 A.D.2d 647, 648;  see generally 4 Weinstein–Korn–Miller, N.Y. Civ Prac CPLR ¶ 2103.06).  Indeed, the period was extended from three to five days in 1982 because the existing three-day extension was seen as inadequate:  “The traditional three days by which a responding period is extended when the paper to be responded to is served by mail has proved too short in recent years, as the mails have been increasingly delayed” (1982 Rep of Advisory Comm on Civ Prac, reprinted in 1982 McKinney's Session Laws of N.Y. at 2651–2652).

In interpreting statutes, the primary principle is to honor the Legislature's intent.  In determining legislative intent, the starting point is, of course, the statutory language.  As the Court of Appeals has recently reiterated:  “In answering any question of statutory interpretation, our primary consideration is to ascertain and give effect to the intention of the Legislature.  Because the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof.  We also must consider the spirit and purpose of the act and the objects to be accomplished.  Critically, a statute must be construed as a whole and its various sections must be considered together and with reference to each other” (People v. Thomas, 33 NY3d 1, 5–6 [internal quotation marks and citations omitted] ).

The Legislature did not intend CPLR 2103(b)(2) as a means by which a party could, as a general matter, extend its own time to make a motion.  Instead, the Legislature enacted the provision to give the party responding to service by mail the full amount of the “responding period” provided for the doing of an act (1982 Rep of Advisory Comm on Civ Prac, reprinted in 1982 McKinney's Session Laws of N.Y. at 2651).  In Simon v. Usher (17 NY3d 625), the Court of Appeals reviewed whether the five-day extension under CPLR 2103(b)(2) applies to the 15–day time period prescribed by CPLR 511(b) to move for change of venue when a defendant serves its demand for change of venue by mail.  Under CPLR 511(b), a defendant may contest the plaintiff's choice of venue by serving a demand for a change of venue.  If the plaintiff does not consent to change venue within five days after service of the defendant's demand, the defendant may then move for a change of venue within 15 days after serving the demand.  Thus, a defendant must wait five days after serving the demand for a change of venue before it is permitted to make a motion for a change of venue.  In holding that the defendant is entitled to five additional days under CPLR 2103(b)(2) if the defendant served the demand by mail, the Court gave effect to the statutory scheme which provides for the interplay between the service of the defendant's demand and the plaintiff's lack of consent:  “[a]lthough the [defendant's] motion papers are not directly responding to papers served by plaintiffs, defendants are effectively responding to plaintiffs' lack of consent to the change of venue.  Simply put, defendants' motion papers are not initiatory” (Simon v. Usher, 17 NY3d at 628).  Had the Court held otherwise, a defendant serving the demand by mail would be in the position of having to wait for the demand to be delivered, wait five days for the plaintiff to respond, and then make the motion for a change of venue in whatever time was left.  Thus, a defendant serving the demand by mail would always have less than the statutory 15 days to move for a change of venue.  That would have defeated the legislative intent to give the defendant 15 days to move.

In the situation presented here, by contrast, a defendant will always have the statutory 60 days to move for dismissal under CPLR 3211(e), regardless of how it chooses to serve its answer.  There is no delay in the defendant's time to make its motion due to papers being in transit, and there is no necessary intervening event between the defendant's service of its answer and its ability to move under CPLR 3211(e).  We hold that CPLR 2103(b)(2) does not give the defendant the option to extend that period by another five days, as the legislative intent behind CPLR 2103(b)(2) was to give an additional five days to a responding party.

Here, the defendant's motion was untimely, as she moved pursuant to CPLR 3211(e) to dismiss the complaint 65 days after she served her answer, five days beyond the 60–day time limit for moving.  Accordingly, we agree with the Supreme Court's determination to grant reargument and, upon reargument, vacate its prior order and deny the defendant's motion.