Thomas v Dinkes & Schwitzer, P.C.

[*1] Thomas v Dinkes & Schwitzer, P.C. 2009 NY Slip Op 52394(U) [25 Misc 3d 1232(A)] Decided on November 24, 2009 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 24, 2009
Supreme Court, Kings County

Dermont Thomas, Plaintiff,

against

Dinkes & Schwitzer, P.C. and HERBERT PERERRIA, ESQ.,, Defendants.



14881/09



Counsel:

Plaintiff:

Dermont Thomas, Pro Se

Defendant Perreira

Furman, Kornfield, and Brennan

545 Fifth Avenue

New York, NY 10017

212-867-4100

Defendant Dinkes & Schwitzer

Godosky & Gentile

61 Broadway 20th Floor

New York, NY 10006

212-742-9700

Francois A. Rivera, J.

By notice of cross-motion filed on August 17, 2009, plaintiff Dermont Thomas (hereinafter Thomas) moves, pro se, under motion sequence number two, for an order granting leave to amend the complaint. Thomas also seeks leave permitting him to serve Dinkes & Schwitzer, P.C. (hereinafter D & S) with the amended complaint by personal delivery by Thomas to D & S' counsel in open court on September 25, 2009. By notice of cross-motion filed on September 18, 2009, Thomas again moves for the exact same relief.

By order of this court dated September 25, 2009, defendant Herbert Pererria's motion (hereinafter Pererria), under sequence number one, to dismiss the complaint for lack of personal jurisdiction was granted.

D & S opposes Thomas' cross-motions and cross-move under motion sequence number two and pursuant to CPLR § 3211(a)(7) to dismiss the complaint for failure to [*2]state a cause of action. On September 25, 2009, at oral argument, D & S withdrew that part of its cross-motion which sought dismissal of the complaint pursuant to CPLR §§ 3211(a)(2) and (8).

Thomas opposes the D & S's cross-motion to dismiss the complaint.

MOTION PAPERS

Thomas' two cross- motion are in sum and substance identical and consists of his affidavit and annexed exhibits. For purposes of the courts' analysis they are deemed one application. Exhibit A purports to be documents showing proof of service of the summons and complaint on the all defendants. Thomas separately handed to D & S at oral argument a proposed amended complaint with exhibits marked exhibit B.

D & S opposes Thomas' motion with an affirmation of counsel. D & S cross-moves for dismissal with an affirmation of counsel.

APPLICABLE STATUTES

CPLR §3025(a) pertains to amendments without leave and provides that a party may amend his pleading once without leave of court within twenty days after its service, or at any time before the period for responding to it expires, or within twenty days after service of a pleading responding to it.

CPLR 2103 provides in pertinent part as follows:

Service of papers. (a) Who can serve. Except where otherwise prescribed by law or order of court, papers may be served by any person not a party of the age of eighteen years or over.

(b) Upon an attorney. Except where otherwise prescribed by law or order of court, papers to be served upon a party in a pending action shall be served upon the party's attorney. Where the same attorney appears for two or more parties, only one copy need be served upon the attorney. Such service upon an attorney shall be made:

1. by delivering the paper to the attorney personally; or

2. by mailing the paper to the attorney at the address designated by that attorney for that purpose or, if none is designated, at the attorney's last known address; service by mail shall be complete upon mailing; 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.

CPLR §2214 [c] provides as follows: Furnishing papers to the court. Each party shall furnish to the court all papers served by him. The moving party shall furnish at the hearing all other papers not already in the possession of the court necessary to the consideration of the questions involved. Where such papers are in the possession of an adverse party, they shall be produced by him at the hearing on notice served with the motion papers. Only papers served in accordance with the provisions of this rule shall be read in support of, or in opposition to, the motion, unless the court for good cause shall [*3]otherwise direct.

DISCUSSION

On June 16, 2009, Thomas commenced the instant action by filing a summon and complaint and an application to proceed as a poor persons. D & S' cross-motion seeks to dismiss the complaint before being required to answer it. On September 25, 2009, at oral argument of the instant cross-motions, Thomas handed D & S for the first time a copy of a proposed amended complaint.

At that time, D & S did not object to Thomas' duplicate cross-motions and waived its objections to Thomas' failure to annex the original complaint to the cross-motions.

D & S also accepted the amended complaint handed to him by Thomas at oral argument. , D & S also withdrew that part of their cross-motion which sought dismissal of the complaint pursuant to CPLR §§ 3211(a)(2) and (8) for lack of personal and subject matter jurisdiction. By their conduct at oral argument, D & S submitted to the personal jurisdiction of the court.

D & S contends that neither the original nor amended complaint state a cognizable claim in law or equity. Neither Thomas nor D & S has annexed a copy of the original complaint to their respective cross-motions. The affirmation of D & S's counsel incorporates by reference the arguments and exhibits in defendant Pererria's motion for dismissal. On September 25, 2009, the court heard oral argument on Pererria's motion for dismissal based on lack of personal jurisdiction. The court issued an order that date dismissing the complaint based on Thomas' failure to effectuate service of the pleadings and not based on its contents. At this point the court does not have Pererria's motion and is unaware of whether Thomas' original complaint was annexed thereto. Whether or not it was annexed, the court does not have it now. Furthermore, D & S does not allege that the complaint allegedly served upon Pererria is identical to the complaint allegedly served on D & S. In light of Thomas' submissions up to now, no such an assumption is appropriate.

Thomas' motion actually seeks court permission to do two separate things. The first is to amend the complaint; the second is to serve the amended complaint on D & S by service on its counsel in open court on September 25, 2009. Each party is entitled to amend its pleading once without leave of court. This is popularly known as an amendment "as of course" and it must be exercised within one of the time periods set forth in CPLR 3025(a) (Siegel, Practice Commentaries, McKinney's, CPLR Rule 3025, C3025:1).

Inasmuch as D & S' time to answer the complaint had not expired, Thomas may amend its complaint as of course or without leave of the court. Therefore, Thomas' submission of a proposed amended complaint for court approval was a superfluous act.Thomas may not only amend the complaint as he sees fit, he is furthermore not [*4]bound by the proposed amended complaint he handed D & S at oral argument.

The court now turns to Thomas' request for leave to serve D & S with an amended complaint by delivery to their counsel in court on September 25, 2009. Inasmuch as Thomas is seeking permission to serve the amended complaint the same date that oral argument was scheduled on the relief requested, its is of course untimely. The date for the proposed alternative service has already passed before the court has determined the cross-motion. CPLR §308 (5) authorizes the court, by ex parte motion, to order service by an improvised method when service under the other subdivisions of the statute is impracticable. No such showing was made by Thomas.

In this particular instance, however, D & S submitted to the personal jurisdiction of the court when it withdrew its claim of lack of personal jurisdiction at oral argument on September 25, 2009. From that point forward, the instant action is pending and the amended complaint is in the nature of interlocutory papers and not a pleading to commence the action. Service of interlocutory papers is governed by subdivisions b through d of CPLR § 2103 and includes among available options personal delivery on a party's counsel by a non-party over the age of eighteen.

Inasmuch as Thomas sought to serve an amended complaint upon D & S himself, it would have been improper under any circumstances since he is a party to the action. The application to serve the amended complaint as requested must be denied. However, the denial is without prejudice to Thomas' right to serve the amended complaint upon D & S in accordance with CPLR § 2103.

Although, D & S offered to accept service of the proposed amended complaint to facilitate court review of its cross-motion for dismissal pursuant to CPLR § 3211(a)(7), neither D & S nor Thomas annexed a copy of the original complaint to their respective cross-motions. Since D & S failed to provide the court with the very pleading necessary to establish the validity of its claim, its motion to dismiss the original complaint must be denied pursuant to CPLR 2214[c] (see generally, Alizio v. Perpignano, 225 AD2d 723 [2nd Dept., 1996]).

Inasmuch as Thomas may amend the original complaint without leave of the court and is therefore not bound by the proposed amended complaint, the court finds review of the proposed amended complaint, pursuant to CPLR 3211(a)(7), would be premature.D & S' cross-motion to dismiss the original complaint is denied without prejudice. D & S may move again to dismiss the original complaint pursuant to CPLR 3211(a)(7) by filing a motion for said relief within ten days of notice of entry of this decision and order.

Thomas may freely amend its complaint and serve it upon D & S in accordance with CPLR § 2103 provided service of same is made within twenty days of notice of entry of this decision and order.

The foregoing constitutes the decision and order of this court. [*5]

& #151; x

J.S.C.