Malament v Jong Kim

[*1] Malament v Jong Kim 2008 NY Slip Op 52622(U) [22 Misc 3d 1110(A)] Decided on December 23, 2008 Supreme Court, Nassau County Austin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 23, 2008
Supreme Court, Nassau County

Howard Malament, Plaintiff,

against

JONG KIM and ARCTIC PRODUCTS CORP., Defendants.



16602/08



COUNSEL FOR PLAINTIFF

Nathan Pinkhasov, Esq.

95-20 63rd Road - Suite B

Rego Park, New York 11374

COUNSEL FOR DEFENDANT

NO APPEARANCE

Leonard B. Austin, J.

Plaintiff, Howard Malament ("Malament"), moves for an order pursuant to CPLR 3213 for summary judgment in lieu of a complaint on the ground that this action is based upon an instrument for the payment of money only. Defendants, Jong Kim ("Kim") and Arctic Products Corp. ("Arctic"), have not submitted opposition to the motion.

BACKGROUND

Kim and Arctic executed a secured promissory note ("First Note") on April 26, 2007 promising to pay Malament the principal sum of $48,279 on or before October 30, 2008 unless Malament consented to an extension of the due date. The interest rate of the First Note was 7% per annum. Kim and Arctic were to pay Malament 18 monthly payments of $2,963.80 on the first of each month commencing June 1, 2007. Pursuant to paragraph 3 of the First Note, in the event that the Defendants failed to pay any installment due under the First Note within 15 days of its due date, Plaintiff would be entitled to declare the entire unpaid balance of the principal immediately due and payable with 21% per annum interest [FN1]. Presentment, demand, protest or notice of any kind were waived by the Defendants and they agreed to pay all reasonable costs of collection, including attorneys' fees.

Kim and Arctic executed a second promissory note ("Second Note"), dated April 26, 2007 in the amount of $275,000. The terms and conditions of the First Note and Second Note were identical except that the Defendants were to make 48 monthly payments, in the amount of $5,445.33, with a balloon payment in the amount of $62,932.34 in the 41st month.

By letter, dated July 21, 2008, sent via facsimile and certified mail, Malament informed Defendants that as of that date, he had not received the 13th payment due on June 1, 2008 under the First Note or the 14th payment due on July 1, 2008 due under the Second Note. A subsequent letter was sent by Malament's counsel, dated August 5, 2008, requesting payment under the First and Second Notes within ten days. No such payment or any further payments were ever made by the Defendants.

By notice of motion, dated August 25, 2008, Plaintiff moved for summary judgment in lieu of a complaint seeking judgment in the amount of $244,999.01 with 21% interest, costs and attorneys' fees of $5,000. The notice of motion stated a return date of October 2, 2008 [FN2] with answering papers to be served on Plaintiff's counsel on or before September 26, 2008.

According to the affidavit regarding service upon Kim, the process server attempted to serve Kim at his residence on three separate occasions, September 6, 2008 at 7:03 a.m., September 8, 2008 at 7:32 p.m. and September 10, 2008 at 4:48 p.m. On the third attempt, a copy of the "summons [sic] notice of motion for summary judgment" was affixed to the door of Kim's residence. A copy of the summons and notice of motion were then mailed to the same address marked "Personal & Confidential" on September 10, 2008.

With respect to Arctic, Plaintiff's process server personally delivered two copies of the "RJI; NOTICE OF MOTION FOR SUMMARY JUDGMENT IN LIEU OF COMPLAINT; AFFIRMATION IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT IN LIEU OF [*2]COMPLAINT W/SUPPORTING DOCUMENTS" to the Secretary of State.

Neither affidavit of service submitted along with Plaintiff's moving papers is stamped by the County Clerk's office and both appear to be originals.

DISCUSSION

CPLR 3213 permits a party to move for summary judgment in lieu of a complaint when the action is based upon an instrument for the payment of money only. Interman Industrial Products Ltd. v. R.S.M. Electron Power Inc., 37 NY2d 151, 155 (1975); and East New York Savings Bank v. Baccaray, 214 AD2d 601 (2nd Dept. 1995). A promissory note is an instrument for the payment of money only for the purposes of CPLR 3213. Davis v. Lanteri, 307 AD2d 947 (2nd Dept. 2003).

Under CPLR 3213, when an action is based upon an instrument for the payment of money only, the plaintiff may serve with the summons, a notice of motion for summary judgment and the supporting papers in lieu of a complaint.

In order to establish a prima facie case on a promissory note, plaintiff must establish the existence of the instrument and the defendant's failure to make payment pursuant to the terms of the instrument. Mangiatordi v. Maher, 293 AD2d 454 (2nd Dept. 2002); and East New York Savings Bank v. Baccaray, supra.

Plaintiff, in an unopposed motion for summary judgment in lieu of a complaint, bears the burden of establishing that the defendant was properly served with the motion. Cadle Co. v. Ayala, 47 AD3d 919 (2nd Dept. 2008). "CPLR 3213 is a hybrid procedure incorporating certain elements of an action and certain elements of motion practice." Goldstein v. Saltzman, 13 Misc 3d 1023, 1025 (Sup. Ct. Nassau Co. 2006). See also, Flushing National Bank v. Brightside Manufacturing Inc., 59 Misc 2d 108 (Sup.Ct. Queens Co.1969). Jurisdiction in a CPLR 3213 motion 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. Goldstein v. Saltzman, supra.The minimum amount of time a defendant has to oppose a CPLR 3213 motion 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. Id. CPLR 3213 provides, "(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." Therefore, the date and method of service of the CPLR 3213 motion papers sets the defendant's time to oppose the motion. Id.

Here, Kim, a natural person, was served pursuant to CPLR 308(4). Consequently, the minimum amount of time between service of the summons and motion papers and the return date is 40 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.

Malament's papers do not reflect when and if the affidavit of service was filed with the County Clerk. Moreover, the date of service, September 10, 2008, was only 16 days before the Plaintiff required Kim to serve answering papers.

With respect to Arctic, service was accomplished pursuant to Business Corporation Law §306. The minimum amount of time between service and the return date of the motion is 30 days from the date of service pursuant to CPLR 320(a). However, the affidavit of service does not indicate that Arctic was served with a copy of the summons. CPLR 3213 requires that defendant be served with a summons. In addition, the notice of motion required answering [*3]papers from Arctic only 18 days after service of the motion rather than the minimum 30 days.

The failure to give proper notice of a motion deprives the court of jurisdiction to hear the motion. Bianco v. Ligreci, 298 AD2d 482 (2nd Dept. 2002); Golden v. Golden, 128 AD2d 672 (2nd Dept.1987); and Burstin v. Public Service Mutual Ins. Co., 98 AD2d 928 (3rd Dept.1983). Motion papers must be served in the manner required by the statute. See, Welch v. State of New York, 261 AD2d 537 (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 AD2d

706 (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. Goldstein v. Saltzman, supra at 1027.

CPLR 3213 gives the plaintiff an option to 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. Id. at 1028. Plaintiff cannot give defendant the minimum amount of time permitted to oppose the motion and demand opposition in advance. Because Malament demanded service of answering papers by September 26, 2008, Defendants were 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. Id. See, National Bank of Canada v. Skydell, 181 AD2d 645 (1st Dept.1992); and 1 New York Civil Practice: CPLR ¶ 3213.02.

Accordingly, it is,

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

This constitutes the decision and Order of the Court.

Dated: Mineola, NY_____________________________

December 23, 2008Hon. LEONARD B. AUSTIN, J.S.C.

X X X Footnotes

Footnote 1: Because the Court does not have jurisdiction over this matter, as discussed infra, it does not reach or address the issue of whether the note is usurious as to Kim or both Defendants.

Footnote 2: The motion was adjourned once to October 30, 2008, the date on which it was submitted to the Court without opposition.