RAB Performance Recoveries, LLC v Harari

[*1] RAB Performance Recoveries, LLC v Harari 2010 NY Slip Op 51773(U) [29 Misc 3d 129(A)] Decided on October 5, 2010 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 5, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., GOLIA and STEINHARDT, JJ
2009-1548 Q C.

RAB Performance Recoveries, LLC, Respondent,

against

Arnon Harari, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered March 18, 2009. The order denied defendant's motion to dismiss the complaint.

ORDERED that the order is affirmed without costs.

In this action to recover damages for breach of a credit card agreement and based on an account stated, defendant alleged in his answer, dated and filed on September 10, 2008, that he had received the summons and complaint, "but service was not correct." Thereafter, by notice of motion dated January 16, 2009, defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (8). The Civil Court denied the motion on the ground that it was untimely, finding that defendant had failed to make the motion within 60 days of the date of service of his answer. The instant appeal by defendant ensued.

CPLR 3211 (e), which governs the timing of a motion to dismiss for improper service, provides, in relevant part, that
"an objection that the summons and complaint . . . was not properly served is waived if, having raised such an objection in a pleading, the objecting party does not move for judgment on that ground within sixty days after serving the pleading, unless the court extends the time upon the ground of undue hardship."
CPLR 3211 (e) was enacted "to require a party with a genuine objection to service to deal with the issue promptly and at the outset of the action . . . ferret out unjustified objections and . . . [*2]provide for prompt resolution of those that have merit" (Wade v Byung Yang Kim, 250 AD2d 323, 325 [1998] [internal quotation marks and citations omitted]).

Here, although there is no proof in the record as to precisely when defendant served his answer, nevertheless, the record establishes that defendant filed his answer on September 10, 2008, within the period required for service of an answer, and waited more than 60 days thereafter to move to dismiss. Consequently, his motion to dismiss is untimely and he thus waived any objection to service (see CPLR 3211 [e]).

Accordingly, the order of the Civil Court denying defendant's motion to dismiss the complaint pursuant to CPLR 3211 (a) (8) is affirmed.

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: October 05, 2010