Genesis Merchant Partners, LP v Gee

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Genesis Merchant Partners, LP v Gee 2013 NY Slip Op 32328(U) September 17, 2013 Sup Ct, New York County Docket Number: 651852/2013 Judge: Joan A. Madden Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 09/27/2013 1] INDEX NO. 651852/2013 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 09/27/2013 SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PART PRESENT: /1 Justice INDEX NO. MOTION DATE -vMOTION SEQ. NO. MOTION CAL. NO. The following papers, numbered 1 to _ _ were read on this motion to/for _ _ _ _ _ _ __ , PAPERS NUMBERED , Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ... .. Answering Affidavits - ( J) Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ - Exhibits - - - - - - - - - ;2 a (J) <l: w a: (!) \ ,I w;2 (,)- -~ Cross-Motion: D Yes ~ No Upon the foregoing papers, it is ordered that this motion tV-, V\ ~ ~ '" wJ. I,.tvt v V\A (/; " vWv'W 15 t.-ev~ ~ 1W 4. l c () rJ..4.Vv-u.,.,. Wl h.. Dc, (" l~ 1I./V +-- 0 ( J..,.r - t;a :::::>..J .,..J a aLL I-w c:::t: wIa:a: a:a ~LL w a: >- ..J ..J :::::> LL I(,) w a.. (J) w a: (J) w (J) <l: -(,) ;2 0 I- 0 Dated: ~ Check one: 0 J.S.C . .s.c. FINAL DISPOSITION Check if appropriate: D DO NOT POST N-FINAL DISPOSITION D REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 11 -----------------------------)( ~i~i~i~-~~;~~~~~-~ARTNERS, L.P., Index No. 651852/2013 Plaintiff, -againstJAMES D. GEE, JR., Defendant. -------------------------------------------------------------)( JOAN A. MADDEN,J. Defendant James D. Gee, Jr. moves, by order to show cause, for an order vacate his default and dismissing this action, and for costs. As set forth below, the motion to vacate the default is granted as plaintiff concedes that it failed to comply with the time requirements of CPLR 3213. Specifically, plaintiff filed the summons, notice of motion for summary judgment in lieu of complaint and supporting papers on or about May 22, 2013. CPLR 3213 provides that the summons served with papers seeking summary judgment in lieu of complaint "shall require the defendants to submit answering papers within the time provided in the notice of motion." CPLR 3213 further provides that "[t]he minimum time such motion shall be noticed to be heard shall be as provided by subdivision (a) of rule 320 for making a notice of appearance, depending on the method of service." CPLR 320(a) requires an answer to be served within 30 days of completion of service. Here, service was made on defendant per CPLR 308(2) which provides that service is complete 10 days after the filing of proof of service. According to the affidavits of service substituted service was made on defendant's place of business in Tennessee on June 7, 2013, and the affidavit of service was filed with the court on June 17,2013. Thus, service was complete on June 27,2013, which is 10 days from [* 3] the filing of proof of service. Under CPLR 3213, the minimum time for noticing summary judgment in lieu of complaint was 30 days from June 27, 2013. Since the motion was noticed to be heard on June 17,2013, plaintiff failed to comply with the time requirements under CPLR 3213. Defendant argues that the short service of a motion for summary judgment in lieu of complaint constitutes a jurisdictional defect and requires dismissal of the action. In support of his position, defendant point to Goldstein v. Saltzman, 13 Misc.3d 1023 (Sup Ct Nassau Co. 2006, Austin J.). On the other hand, plaintiff argues that short service is not jurisdictional and the remedy is to provide defendant with an opportunity to respond to the motion. Trial courts have disagreed as to whether this defect is jurisdictional. While there is no appellate authority specifically on point, the First Department has held that a motion for summary judgment in lieu of complaint must be denied "for failure to provide sufficient time on the notice of motion for defendants to respond." National Bank of Canada v. Skydell, 181 AD2d 645 (pt Dept 1992). Moreover, in Ross Bicycles v. Citibank, 149 AD2d 330 (pt Dept 1989), a case cited in Skydell, where a default judgment had been entered five days before the statutory minimum time had elapsed, the court held that the default judgment should be vacated and the defendant be given an opportunity to appear and contest the motion for summary judgment in lieu of complaint. Here, defendant does not challenge the manner in which the service of the summons with notice of motion and supporting papers was made and does not deny receiving them. Defendant's only challenge is the date the notice of motion was noticed to be heard. Under these circumstances, I conclude that plaintiffs failure to comply with CPLR 3213 2 [* 4] time requirements for defendant's response to the motion is not jurisdictional but rather "circumscribes the defendant's available response time." Plaza 400 Owners Corp. v. Resnicoff, 168 Misc2d 837 (NY Civ. Ct. 1996, J. Stallman);Imbriano v. Seaman, 189 Misc2d 357 (Dist. Ct. Nassau Co. 2001, Gartner, J.). Finally, defendant's motion to dismiss and for sanctions is denied. In view of the above it is ORDERED that defendant's motion to vacate its default in answering is granted, and defendant shall e-file papers in response to the motion for summary judgment in lieu of complaint and provide working copies of papers to Part 11, room 351, 60 Centre Street, New York, NY on or before on or before October 21,2013; and it is further ORDERED that plaintiff shall e-file any reply and provide working copies to Part 11, room 351, 60 Centre Street, New York, NY, on or before October 30, 2013; and it is further ORDERED that oral argument of the motion for summary judgment in lieu of complaint (motion seq. 001) shall be held in Part 11, room 351, 60 Centre Street, New York, NY, on November 7,2013, at 9:30 am. DATED: Sep tembe,0l'o13 tI J.S.C. HaN, JOAN A. MADDEN li:---s:;;c JaS.C. ~~ 3

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