Johnson v J.P. Morgan Chase, N.A.

[*1] Johnson v J.P. Morgan Chase, N.A. 2009 NY Slip Op 52592(U) [25 Misc 3d 1245(A)] Decided on December 21, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 21, 2009
Supreme Court, Kings County

Letricia Dianne Johnson, Plaintiff,

against

J.P. Morgan Chase, N.A. and J.W. TOWING. INC., Defendants.



15924/2009



Plaintiff, pro se

Letricia Dianne Johnson

Defendant, J.P. MORGAN CHASE, N.A.

James D. Greenhalgh, Esq.

Windels, Marx Lane & Mittendorf, LLP

156 West 56th Street

New York, NY 10019

212-237-1000

Francois A. Rivera, J.

By notice of motion filed on October 29, 2009, Letricia Dianne Johnson (hereinafter Johnson), moves under motion sequence number two, for an accelerated judgment in the her favor in the amount of twenty six million dollars ($26,000,000.00) based on the defendants allegedly illegal repossession of her automobile, a 2005 BMW. Defendant J.P. Morgan Chase (hereinafter Chase) opposes the motion. J.W. Towing, Inc. (hereinafter JWT) did not appear or submit opposition to the motion.

Johnson's affidavit of service to Chase avers service of the instant motion by overnight delivery to the office of Chase's counsel on October 28, 2009. Johnson's affidavit of service to JWT avers service by overnight delivery to an address in Yonkers, New York. The motion was made returnable on October 29, 2009, to Part 52 of this court. On December18, 2009, the [*2]court heard oral argument and reserved decision.

MOTION PAPERS

Johnson motion papers consists of her affidavit in support and her affidavits of service of the instant motion.

Chase opposes the motion with an affirmation of counsel and four annexed exhibits labeled 1through 4. Chase has previously filed a motion (the removal motion) seeking removal of a case it brought against Johnson in Kings County Civil Court (CV-054257-09KI) and consolidation of that action with the instant Supreme Court case. Exhibit 1 is a copy of the notice of the removal motion. Exhibit 2 is a copy of the affirmation of Chase's counsel and five exhibits annexed to his affirmation and submitted in support of the removal request. Exhibit 3 is a copy of the affidavit of Chase's vice-president, also submitted in support of the removal motion. Exhibit 4 is a copy of decision and order of Kings County Civil Court, Part 34, dated November 25, 2009, pertaining to the aforementioned Civil Court matter.

Johnson submit her affidavit in reply to Chase's opposition papers.

APPLICABLE LAW

CPLR 2214 (a) and (b) provides in pertinent part as follows:

a) Notice of motion. A notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefore. Relief in the alternative or of several different types may be demanded.

(b) Time for service of notice and affidavits. A notice of motion and supporting affidavits shall be served at least eight days before the time at which the motion is noticed to be heard.

* * *

CPLR §3012 (b) provides that when an action is commenced by service of a summons without a complaint, the defendant can serve a notice of appearance with a demand for a complaint within the time provided for in CPLR § 320(a). If the defendant serves a notice of appearance without a demand for a complaint, the complaint shall be served within 20 days after the service of the notice of appearance.

CPLR §3212 (a) provides in pertinent part that any party may move for summary judgment in any action, after issue has been joined.

DISCUSSION

Johnson did not set forth either the procedural rule utilized for bringing the instant motion or the substantive law supporting the relief requested contrary to the requirements of CPLR § 2214(a). The motion is therefore denied. Johnson also served the motion on Chase and JWT one day before it was noticed to be heard contrary to the requirements of CPLR § 2214(b).

Chase did not raise any objection to the untimely service of the motion and indeed managed to submit opposition despite the shortened response time. However, JWT, did [*3]not appear for oral argument or submit opposition to the motion. The court cannot find JWT waived the procedural defect of the short service of the motion. The motion is therefore denied as against JWT due to Johnson's failure to comply with CPLR §2214(a) and (b) and denied as against Chase for failure to comply with CPLR §2214(a).

Although the motion is disposed of on procedural grounds, the court finds it appropriate to address several points for the benefit of all parties. On June 26, 2009 Johnson commenced the instant action by filing a summons with notice. CPLR § 3011 sets forth the types of pleadings permitted in New York practice. Pleadings include a complaint, an answer, and a reply. A summons with notice is not a pleading (Petrova v. Investors Capital, 24 Misc 3d 977 [N.Y.Sup.,2009]). "Pursuant to CPLR § 3012 the only statutorily permitted response to the service of a summons with notice is the service of a notice of appearance with or without a demand for a complaint ( see Siegel, New York Practice 4th § 60 )" (id).

By notice of appearance and demand for a complaint, filed with the Kings County Clerk's office on August 24, 2009, Chase demanded that Johnson serve a complaint. Johnson does not claim that she did so nor does she annex a copy of a complaint to her motion papers. Chase states that no complaint was timely served upon it.

Because a complaint has not been served, the court has no factual allegation to review so as to permit a determination whether the plaintiff has any cognizable causes of action (Petrova v. Investors Capital, 24 Misc 3d 977 [N.Y.Sup.,2009]). There is at this point no pleading in the instant action and therefore no joinder of issue. The Supreme Court is powerless to grant summary judgment on a complaint prior to joinder of issue (see CPLR 3212(a); Union Turnpike Assoc., LLC v Getty Realty Corp., 27 AD3d 725 [2nd Dept., 2006]). If the court is powerless to grant summary judgment on an unanswered complaint because there is no joinder of issue, then, a fortiori, the court may not grant summary judgment on a summons with notice.

Chase offered in opposition to the instant motion a copy of a motion it had previously made for removal and joinder. Chase referred to various sworn statements in its prior motion to set forth the procedural history of the parties in this action and the Civil court action. Chase also relied on the sworn statements to support its contention that Johnson's action is frivolous.

In the absence of a pleading all the court may do at this juncture is deny Johnson's motion as premature and order her to serve a complaint on Chase. The court has already ordered Johnson to file and serve a complaint on the defendants.

Plaintiff's motion for an accelerated judgment in the amount of twenty six million dollars ($26,000,000.00) against Chase and JWT is denied.

The foregoing constitutes the decision and order of the court.

-x

J.S.C.

Enter forthwith-x [*4]

J.S.C.