New York Abstract Servs. v Abbate

[*1] New York Abstract Servs. v Abbate 2007 NY Slip Op 51126(U) [15 Misc 3d 1143(A)] Decided on June 1, 2007 Nassau Dist Ct Engel, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 1, 2007
Nassau Dist Ct

New York Abstract Services, Plaintiff,

against

Carol Abbate, Defendant.



7034/07



Attorneys for Plaintiff: David W. Chefec, PC

Pro Se Defendant: Carol Abbate

Andrew M. Engel, J.

The Plaintiff commenced this action by the filing of a Summons and a Notice of Motion seeking summary judgment in lieu of a complaint. The Plaintiff alleges that the Defendant has defaulted on a promissory note in the sum of $2,373.72, due on or before December 31, 2005. The Plaintiff served the Summons and motion, pursuant to CPLR § 308(4), by affixing a copy thereof on the door of he Defendant's dwelling place or usual place of abode on March 7, 2007 and mailing a copy, in the prescribed manner, on the same date. Proof of service was filed with the court on March 15, 2007. The Defendant has not appeared herein.

There is no question, that the note upon which the Plaintiff seeks recovery is an instrument for the payment of money only upon which the Plaintiff may seek relief pursuant to CPLR § 3213. O'Brien v. O'Brien, 258 AD2d 446, 685 NYS2d 254 (2nd Dept. 1999); Gallagher v. Kazmierczuk, 245 AD2d 418, 666 NYS2d 212 (2nd Dept. 1997); Badenhop v. Badenhop, 271 AD2d 386, 706 NYS2d 900 (2nd Dept. 2000) A review of the Plaintiff's papers and the Affidavit of Service, however, raises questions concerning the timeliness of the Plaintiff's service of its motion papers.

Uniform District Court Act § 1004 allows a motion for summary judgment in lieu of a complaint, pursuant to CPLR § 3213, to be utilized in the District Court:

except that the minimum period for return of the motion shall be as provided by § 402 of this act for answering a summons, based upon the time and method of service. The summons served with such motion papers shall instruct the defendant to answer as provided in the accompanying notice of motion. If the plaintiff adds days to the period for return provided herein, he may require the defendant to serve a copy of his answering papers upon plaintiff an equal number of days prior to such return day.

This is a departure from CPLR § 3213 to the extent that the Civil Practice Law and Rules fixes the minium time for the noticing of such a motion to CPLR § 320(a) and limits the additional [*2]days the Plaintiff may add to ten (10), whereas the Uniform District Court Act fixes the minimum period for return of the motion to UDCA § 402 and contains no restriction on the number of days the Plaintiff may add.

UDCA § 402 provides as follows, regarding the Defendant's time to appear and answer:

(a) If the summons is personally served within the county on a natural person pursuant to CPLR § 308(1), or on a corporation pursuant to CPLR § 311(1), it shall require the defendant to appear and answer within twenty days after its service.

(b) If the summons is served otherwise than as designated in subdivision (a), it shall provide that the defendant must appear and answer within thirty days after proof of service is filed with the clerk.

This is a departure from CPLR § 320(a) which, in circumstances where service is made other than by personal service, requires an appearance within thirty (30) days after service is complete. In the case of service pursuant to CPLR § 308(4) service would be complete ten (10) days after proof of service is filed, thereby providing a minimum of forty (40) days for the defendant to appear after proof of service is filed, as opposed to UDCA § 402(b), which provides for thirty (30) days from the date of filing of proof of service.

As indicated, proof of service of the Plaintiff's Summons and motion was filed on March 15, 2007. To have been in compliance with UDCA § 402 the motion's return date would have to have been no earlier than April 14, 2007. The Plaintiff having required answering papers to be served at least seven (7) days before the return date, in accordance with UDCA § 1004, the earliest permissible return date for the Plaintiff's motion was April 21, 2007. The Plaintiff's motion was returnable April 10, 2007, significantly earlier than the controlling statutes permit. The question then becomes what is the remedy, if any, for such untimeliness.

In Flushing National Bank v. Brightside Manufacturing Inc., 59 Misc 2d 108, 298 NYS2d 197 (S.C. Queens Co. 1969) the court recognized the then new procedure under CPLR § 3213 to be "a hybrid which partakes of elements of both an action and an ordinary notice of motion." In that case, the defendants appeared and challenged service on the grounds that they were not given timely notice of the plaintiff's motion, as well as the merits of the plaintiff's claim. Under those circumstances, the court noted that the question of timeliness "is one of jurisdiction of the person, rather than subject matter [and] it can be waived[;]" and refused to deny the application on jurisdictional grounds.

Four (4) years later, in Kemp v. Hinkson, 73 Misc 2d 76, 341 NYS2d 527 (Dist. Ct. Suffolk Co. 1973) the court was asked to address this issue, where the Defendant neither answered nor appeared on the motion's return date. After noting the proper application of UDCA §§ 404 and 1004, the court recognized that "short notice is not fatal to jurisdiction when defendants elect to contest on the merits of the action," and held that where a defendant fails to appear and answer a short served motion pursuant to CPLR § 3213 will be denied and dismissed. The court in Putnam County National Bank of Carmel v. Bischofsberger, 82 Misc 2d 915, 371 NYS2d 308 (County Ct. Putnam Co. 1975), reached the same conclusion.

In Plaza 400 Owners Corp. v. Resnicoff, 168 Misc 2d 837, 640 NYS2d 984 (Civ. Ct. NY Co. 1996) the court was faced with a "short-served" motion for summary judgment in lieu of complaint brought by the plaintiff, as well as a cross-motion made by the defendant [*3]which was untimely made. The court drew a distinction between a "motion [which] is an application for relief in a pending action or proceeding[]" and a motion for summary judgment in lieu of a complaint, which "is simultaneously both a motion and an action[, where t]he moving papers are the functional equivalent of a complaint." In the former, "[b]ecause personal jurisdiction has been acquired by the service of the summons, late service of a motion does not affect jurisdiction[;]" whereas, in the latter, service must be made "in the same manner as a summons, i.e. by a jurisdictional method."

In addressing the defendant's cross-motion, the court in Plaza, id. recognized that "[i]nadequate notice may mean no notice[,]" remarking that "a short-served motion, when submitted on default, should be denied." The court held, "[h]owever, where the adverse party opposed on the merits, evidencing adequate notice, short service has been deemed waived." In the court's opinion, the question, at that point became, whether the respondent to the short-served motion was substantially prejudiced.

Applying the same reasoning to motions for summary judgment in lieu of a complaint, the court in Plaza, supra ., finding Kemp v. Hinkson, supra . and Putnam County National Bank of Carmel v. Bischofsberger, supra .to be inapposite due to the fact that the defendants therein had defaulted, the court held that "[w]here, ... , defendant appeared on the merits and does not dispute either the legal sufficiency of the service method or its performance, jurisdiction is not in issue. The court has the power to entertain the motion but must afford the defendant adequate opportunity to prepare and serve a response before it decides the matter." Finding no indication that the plaintiff attempted to provoke a default and that service therein satisfied due process standards, the court refused to deny the plaintiff's motion for summary judgment in lieu of complaint based upon its short service.

To this point, in the historical development of this line of cases, there appeared to be two (2) distinct rules developing. In cases where the defendant appeared and contested the merits of the underlying motion for summary judgment short service of the motion alone would not serve as a basis for the denial of the motion. In cases where the defendants neither appeared nor answered, it would. Then came Imbriano v. Seaman, 189 Misc 2d 357, 731 NYS2d 596 (Dist. Ct. Nassau Co. 2001).

In Imbriano, id., relying on Flushing National Bank v. Brightside Manufacturing Inc., supra . and Plaza 400 Owners Corp. v. Resnicoff, supra .,the court "part[ed] company with [Kemp v. Hinkson] the only prior authority on the point raised[;] and held that, even in the case of a defendant's default, short notice of a motion for summary judgment in lieu of complaint does not deprive the court of jurisdiction." Finding no indication that the plaintiff therein attempted to provoke a default and it being undisputed that the defendant received the papers well in advance of the motion's return date, quoting from Plaza 400 Owners Corp. v. Resnicoff, supra ., the court reasoned:

if service had been completed before the return date, but not sufficiently early to afford the full statutory response time, jurisdiction was already acquired before the beginning of the appearance/answer period."

After denying the plaintiff's motion on substantive grounds, the court, rather than dismissing the action, deemed the moving papers a complaint, pursuant to CPLR § 3213.

Imbriano, supra . was succeeded by Tokyo Leasing (U.S.A.) Inc. v. G-IV Wash, Clean & Dry, 4 Misc 3d 164, 779 NYS2d 982, (Dist. Ct. Nassau Co. 2004), in the District Court [*4]of Nassau County, and by Goldstein v. Saltzman, 13 Misc 3d 1023, 821 NYS2d 746 (S.C. Nassau Co. 2006), in the Supreme Court of Nassau County. Neither of these decisions, both involving defendant's who were in default, followed Imbriano, supra . The court in Tokyo Leasing, supra . found UDCA §§ 402 and 1004 "quite clear in their mandates for service of a CPLR 3213 motion[;]" and held the "[f]ailure to follow these mandates is a jurisdictional defect in a default situation and judgment may not be entered under these circumstances." In Goldstein v. Saltzman, supra ., the court found the jurisdictional discussion in Plaza 400 Owners Corp. v. Resnicoff, supra . to be dicta, the defendant therein having appeared and contested the motion on substantive grounds, and found the decision in Imbriano, supra . to be based on that dicta. Noting that [g]enerally, the failure to give notice of a motion deprives the court of jurisdiction to hear the motion[,] Bianco v. Ligreci, 298 AD2d 482, 748 NYS2d 503 (2nd Dept. 2002); Golden v. Golden, 128 AD2d 672, 513 NYS2d 171 (2nd Dept. 1987); and Burstin v. Public Service Mutual Ins. Co., 98 AD2d 928, 471 N.Y.S.2d 33 (3rd Dept. 1983)[,] the court held that [w]hen 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 (citations omitted)."

This court's opinion, that Kemp v. Hinkson, supra ., Putnam County National Bank of Carmel v. Bischofsberger, supra ., Tokyo Leasing (U.S.A.) Inc. v. G-IV Wash, Clean & Dry, supra . and Goldstein v. Saltzman, supra . were correctly decided, is supported by the lone appellate decision on this issue which this court's research was able to find. In National Bank of Canada v. Skydell, 181 AD2d 645, 581 NYS2d 1005 (1st Dept. 1992) the court held, "Plaintiff's motion for summary judgment pursuant to CPLR 3213 was properly denied for failure to provide sufficient time in the notice of motion for defendants to respond." Given the fact that neither the Court of Appeals nor the Appellate Division, Second Department has spoken directly on this issue, the nisi prius courts, including this court, are bound thereby. Mountain View Coach Lines, Inc. v. Storms, 102 AD2d 663, 476 NYS2d (2nd Dept. 1984):

the doctrine of stare decisis requires trial courts in this department to follow precedents set by the Appellate Division of another department until the Court of Appeals or this court pronounces a contrary rule (citations omitted).

See also: People v. Turner, 5 NY3d 476, 806 NYS2d (2005); Nassau County v. Bigler, 1 Misc 3d 910(A), 781 NYS2d 626 (Nassau Co. S.C. 2001); People v. Brisotti, 169 Misc 2d 672, 652 NYS2d 206 (App. Term. 1st Dept. 1996)

While the decision in National Bank of Canada v. Skydell, supra . correctly mandates the denial of the Plaintiff's present motion, the Appellate Division was silent on the jurisdictional issue and whether or not the Plaintiff's action must also be dismissed. It is the opinion of this court that dismissal is also mandated.

The holdings of Flushing National Bank v. Brightside Manufacturing Inc., supra . and Plaza 400 Owners Corp. v. Resnicoff, supra . are readily distinguishable. As noted, in each of those cases, the defendants appeared and contested the substantive issues raised by the plaintiffs' motions, thereby waiving any jurisdictional argument they may have had. Imriano v. Seaman, supra ., whose holding stands alone in cases involving a defaulting defendant, is similarly distinguishable. In the case sub judice, unlike in Imbriano, id., there is no indication whatsoever that the Defendant ever received the papers well in advance of the return date, if at [*5]all. Moreover, it appears that the court in Imbriano, supra . overlooked the Flushing National Bank v. Brightside Manufacturing Inc., supra . court's recognition that the question of timeliness "is one of jurisdiction of the person" and a footnote therein to the effect that "no default should be permitted nor any judgment entered thereon where there is short notice."

The idea, as enunciated in Flushing National Bank v. Brightside Manufacturing Inc., supra . and adopted in Plaza 400 Owners Corp. v. Resnicoff, supra . and Imriano v. Seaman, supra ., that in the case of insufficient notice "the court should exercise discretion by giving defendants sufficient time to answer the moving papers, while retaining jurisdiction[,]" has no application in those cases where the defendant neither appears nor answers the motion. As noted by Justice Leonard B. Austin, in Goldstein v. Saltzman, supra ., "[s]uch an approach raises additional questions. Can the defaulting defendant now interpose an answer? If so, how much time does the defendant have to answer? If the defendant fails to interpose an answer, may the plaintiff move for leave to enter a default judgment?" To these questions, this court would add, How is the defendant to know he or she may still appear and answer?

Further distinguishing this case from Flushing National Bank v. Brightside Manufacturing Inc., supra . and adopted in Plaza 400 Owners Corp. v. Resnicoff, supra . and Imriano v. Seaman, supra . is the questionable service made by the Plaintiff of the Summons and motion papers, raising additional due process concerns.

As previously indicated, service herein was allegedly effectuated pursuant to CPLR § 308(4). It is well established that a plaintiff may only resort to service pursuant to CPLR § 308(4) where service pursuant to CPLR § 308(1) or (2) cannot be made with due diligence. County of Nassau v. Letosky, 34 AD3d 414, 824 NYS2d 153 (2nd Dept. 2006); Lemberger v. Kahn, 18 AD3d 447, 794 NYS2d 416 (2nd Dept. 2005); Walker v. Manning, 209 NYS2d 691, 619 {12 AD2d 215} NYS2d 137 (2nd Dept. 1994); Scott v. Knoblock, 204 AD2d 299, 611 NYS2d 265 (2nd Dept. 1994).

The Plaintiff made four (4) attempts at such service. All four (4) were made on weekdays, "during normal business hours or when it could reasonably have been expected that [the Defendant] was in transit to or from work (citations omitted)." Earle v. Valente,302 AD2d 353, 754 NYS2d 364 (2nd Dept. 2003); see also: O'Connell v. Post, 27 AD3d 630, 811 NYS2d 441 (2nd Dept. 2006); Gantman v. Cohen, 209 AD2d 377, 618 NYS2d 100 (2nd Dept. 1994) Moreover, "[t]he affidavit of the plaintiff's process server, ... , failed to demonstrate that the process server attempted to ascertain the [Defendant's] business address and to effectuate personal service at that location, pursuant to the provisions of CPLR 308(1) and (2)." Gurevitch v. Goodman, 269 AD2d 355, 702 NYS2d 634 (2nd Dept. 2000); see also: County of Nassau v. Yohannan, 34 AD3d 620, 824 NYS2d 431 (2nd Dept. 2006); Moran v. Harting, 212 AD2d 517, 622 NYS2d 121 (2nd Dept. 1995)

This failure to satisfy the statutory due diligence requirement, would further deprive the court of jurisdiction over the Defendant, Harkless v. Reid, 23 AD3d 622, 806 NYS2d 214 (2nd Dept. 2005), and require the dismissal of this action. Cummins-Allison Corp. v. Bargarnik, 146 Misc 2d 1042, 553 NYS2d 981 (Civ.Ct. Kings Co. 1990); Tauz v. Allstate Insurance Company, 2 Misc 3d 638, 773 NYS2d 813 (Dist. Ct. Nassau Co. 2003).

Accordingly, the Plaintiff's motion for summary judgment in lieu of the complaint is denied and the action is dismissed, without prejudice.

This constitutes the decision and order of this court.

Dated: Hempstead, New York [*6]

June 1, 2007

___________________________

ANDREW M. ENGEL

J.D.C.