Nalodka v Nalodka

[*1] Nalodka v Nalodka 2013 NY Slip Op 50375(U) Decided on March 19, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 19, 2013
Supreme Court, Kings County

Marta Nalodka, Plaintiff,

against

Leslaw Nalodka, Defendant.



1523/13



Atty for Plaintiff

Bail J. Kapessis, Esq.

Kampessis & Shamoiun, PLLC

8418 Third Avenue

Brooklyn, NY 11209

(718) 680-7900

Pro Se Defendant

Francois A. Rivera, J.

By notice of motion filed on February 22, 2013, plaintiff Marta Nalodka has moved pursuant to CPLR 3213 for summary judgment in lieu of complaint against defendant Leslaw Nalodka. Defendant Leslaw Nalodka did not appear or submit opposition to the motion.

BACKGROUND

On February 22, 2013, plaintiff filed the instant motion for summary judgment in lieu of complaint seeking money judgment on a promissory note. Plaintiff's affidavit alleges the following facts among others. On February 2, 2009, plaintiff agreed to lend the defendant $40,000.00 and the parties executed a promissory note reflecting the loan and the terms for repayment. Pursuant to the terms of the note, defendant was to pay back the $40,000.00 loan plus ten percent interest with the total to be repaid on or before February 1, 2010. The defendant defaulted by not making any payments.

MOTION PAPERS

Plaintiff's motion consists of the notice of motion for summary judgment in lieu of complaint, plaintiff's affidavit, an affirmation of plaintiff's counsel which referenced two annexed [*2]exhibits labeled A and B, and an affidavit of service of all of the aforementioned documents. Exhibit A is described as the promissory note in question. Exhibit B is a copy of a letter from plaintiff's counsel to the defendant demanding payment and proof of its mailing.

SERVICE OF THE MOTION

Plaintiff made the instant motion returnable on March 6, 2013 with a direction that answering papers be served on or before February 27, 2013. On February 1, 2013, Joseph Biscaglia, plaintiff's process server, signed his affidavit of service of the instant motion before a notary public. He alleged service of the notice of motion for summary judgment in lieu of complaint, and the accompanying commencement papers on the defendant as follows. On January 31, 2013, he personally delivered the papers to defendant's wife at a specific address in Kings County. The next day he sent the papers by first-class mail addressed to the defendant at the same address that he made the delivery to defendant's wife.

APPLICABLE STATUTES

CPLR 308 (2) provides as follows: "Personal service upon a natural person. Personal service upon a natural person shall be made by any of the following methods:

1. By delivering the summons within the state to the person to be `served; or 2. By delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend 'personal and confidential' and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing; proof of service shall identify such person of suitable age and discretion and state the date, time and place of service, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law."

CPLR 2214 (a) and (b) provide as follows:

"Motion papers; service; time. (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 therefor. 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. [*3]Answering affidavits shall be served at least two days before such time. Answering affidavits and any notice of cross-motion, with supporting papers, if any, shall be served at least seven days before such time if a notice of motion served at least sixteen days before such time so demands; whereupon any reply or responding affidavits shall be served at least one day before such time."

CPLR 3213 provides as follows:

"Motion for summary judgment in lieu of complaint. When an action is based upon an instrument for the payment of money only or upon any judgment, the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint. The summons served with such motion papers shall require the defendant to submit answering papers on the motion within the time provided in the notice of motion. The minimum time such motion shall be noticed to be heard shall be as provided by subdivision (a) of rule 320 for making an appearance, depending upon the method of service. If the plaintiff sets the hearing date of the motion later than the minimum time therefor, he may require the defendant to serve a copy of his answering papers upon him within such extended period of time, not exceeding ten days, prior to such hearing date. No default judgment may be entered pursuant to subdivision (a) of section 3215 prior to the hearing date of the motion. If the motion is denied, the moving and answering papers shall be deemed the complaint and answer, respectively, unless the court orders otherwise."

DISCUSSION

CPLR 3213 is a hybrid procedure incorporating certain elements of an action and certain elements of motion practice (Goldstein v Saltzman, 13 Misc 3d 1023 [Sup Ct, Nassau County 2006], citing Flushing Natl. Bank v Brightside Mfg., 59 Misc 2d 108 [Sup Ct, Queens County 1969]).

"As with a plenary action, jurisdiction is obtained over the defendant by serving the defendant with the summons, notice of motion and supporting papers in a method prescribed in CPLR article 3. The minimum amount of time the plaintiff must give the defendant to oppose the motion for summary judgment in lieu of complaint is determined by the amount of time the defendant would have to appear in the action if the defendant had been served with a summons and complaint or summons with notice" (Goldstein v Saltzman, 13 Misc 3d 1023, 1025 [2006]). CPLR 3213 provides, "[t]he minimum time such motion shall be noticed to be heard shall be as provided by subdivision (a) of rule 320 for making an appearance, depending upon the method of service." Thus, in a 3213 motion, the minimum amount of time the plaintiff must give the defendant to appear and oppose the motion is dependent upon the date and method of service (see generally Siegel, NY Prac § 291 [4th ed]).

If the defendant is a natural person who is served pursuant to CPLR 308 (2) the minimum amount of time between the service of the summons and motion papers and the return date is 40 days. CPLR 320 (a) gives a defendant served in this manner 30 days from completion of service to appear. Service is complete 10 days after the affidavit of service is filed with the county clerk. [*4]

The affidavit of service of Joseph Biscaglia, plaintiff's process server, demonstrates that service was attempted pursuant to CPLR 308 (2). Mr. Biscaglia began the process by personally delivering the papers to defendant's wife on January 31, 2013 to an address in Kings County. The next day the papers were sent by first-class mail addressed to the defendant at the exact same address that delivery was made to his wife.

To successfully complete service pursuant to CPLR 308 (2), Biscaglia was required to file the affidavit of service by no later than 20 days of either delivery or mailing, whichever was effected later. In this case the filing had to occur by no later than February 21, 2013, 20 days after February 1, 2013, the mailing date. Plaintiff did not file the affidavit of service with the Kings County Clerk's office. As a consequence, plaintiff's motion must be denied for failing to demonstrate that it completed service of the instant motion papers upon the defendant. Furthermore, by not filing the affidavit of service, service was not completed and defendant's time to answer the motion never began.

There is another more serious problem with the motion papers. Plaintiff directed the defendant to serve answering papers on or before February 27, 2013. However, plaintiff did not personally deliver the instant motion pursuant to CPLR 308 (1). Applying plaintiff's specific direction to the defendant, the defendant was directed to serve the answer before service of the motion was completed.

Plaintiff did not give the defendant the statutorily required time to appear and respond to the motion. A failure to give the defendant the statutorily mandated time to appear and answer a motion for summary judgment in lieu of complaint compels not only a denial of the motion but also a dismissal of the action (see generally Mashantucket Pequot Gaming Enter. v Ping Lin, 27 Misc 3d 216 [NY Sup. 2010], see also Goldstein v Saltzman, 13 Misc 3d 1023, 2006 NY Slip Op 26374 [Sup Ct, Nassau County 2006]; see also Malament v Jong Kim, 22 Misc 3d 1110[A], 2008 NY Slip Op 52622[U] [Sup Ct, Nassau County 2008]).

Therefore, plaintiff's motion for summary judgment in lieu of complaint is denied and the action is dismissed.

The foregoing constitutes the decision and order of this Court.

Enter:

J.S.C.