Commerce Commercial Leasing, LLC v B.H.I. Group, Inc.
Annotate this CaseDecided on May 11, 2009
Supreme Court, Kings County
Commerce Commercial Leasing, LLC, Plaintiff,
against
B.H.I. Group, Inc. F/K/A BEAUDETTE HOLDINGS, INC. AND THERESA ZANGARA A/K/A THERESE BEAUDETTE A/K/A THERESE M. BEAUDETTE, INDIVIDUALLY, Defendants
27669/08
For plaintiff:
Jaclyn Thomas
1065 Ave of Americas 18th floor
NY, NY 10018
2112-593-3000
Francois A. Rivera, J.
By notice of motion sequence number one, filed on January 28, 2009, plaintiff moves pursuant to CPLR 3212 for summary judgment on the issue of liability against all defendants and for an order dismissing their answer and general denial on the grounds that there is no triable issue of fact The motion was adjourned from February 4, to March 6, 2009 for oral argument. On March 6, 2009, the plaintiff appeared and none of the defendants either appeared or submitted opposition to the motion.
On October 6, 2009, plaintiff commenced the instant action by filing a summons and complaint with the King's County Clerk's office. Issue was joined by defendants answer dated December 8, 2008. On January 15, 2009, plaintiff served a request for judicial intervention and the instant notice of motion on the defendants by mailing same to the office of their counsel.
On January 28, 2009, plaintiff filed a request for judicial intervention, the summons and the
verified complaint and the instant motion with the King's County Clerk's office.
MOTION PAPERS
Plaintiff's motion consists of an affirmation of counsel, a memorandum of law and four annexed exhibits. Exhibit A is the summons, verified complaint and affidavits of service of [*2]same. Exhibit B are the defendants' verified answer. Exhibit C is two pages from a lease. Exhibit D is a letter dated August 12, 2008, from plaintiff's counsel to Therese Zangara.
APPLICABLE LAWThe Uniform Rules For the Trial Courts [22 NYCRR] at § 202.8 sets forth the procedure for motions as follows:
(a) All motions shall be returnable before the assigned judge, and all papers shall be filed with the court on or before the return date.
(b) Special Procedure for Unassigned Cases. If a case has not been assigned to a judge, the motion shall be made returnable before the court, and a copy of the moving papers, together with a request for judicial intervention, shall be filed with the court, with proof of service upon all other parties, where required by section 202.6 of this Part, within five days of service upon the other parties. The moving party shall give written notice of the index number to all other parties immediately after filing of the papers. Copies of all responding papers shall be submitted to the court, with proof of service and with the index number set forth in the papers, on or before the return date.
DISCUSSION
On January 15, 2009, plaintiff served a request for judicial intervention and the instant notice of motion on the defendants by mailing same to the office of their counsel. On January 28, 2009, thirteen days later, plaintiff filed a request for judicial intervention, the summons and the verified complaint and the instant motion with the King's County Clerk's office.
Inasmuch as the instant motion was filed with the Kings County Clerk's office before it had been assigned to a judge, plaintiff was required to comply with the requirements of 22 NYCRR 202.8(b). Plaintiff did not file the request for judicial intervention, with proof of service upon all other parties, within five days of service upon the other parties. Although unopposed, the motion is, nevertheless, denied without prejudice for failure to comply with the aforementioned court rule.
The foregoing constitutes the decision and order of this court.
__________________________________X
J.S.C.
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