Beach House Condominium Assn. of Key W., Inc. v Williams
Annotate this CaseDecided on September 11, 2013
Supreme Court, Kings County
Beach House Condominium Association of Key West, Inc., Plaintiff,
against
Ethel Beatrice Williams AND ZACHARY RIDDICK, Defendants.
9201/13
Plaintiff Attorney
Litchfield & Cavo
420 Lexington Avenue
Suite 400
New York, NY 10170
(212) 434-0100
ProSe Defendants
Zachary Riddick
622 East 84th
Brooklyn, NY 11236
Ethel Beatrice Williams
622 East 84th
Brooklyn, NY 11236
Francois A. Rivera, J.
By notice of motion filed on May 24, 2013 under motion sequence number one, plaintiff Beach House Condominium Association of Key West, Inc.(hereinafter Beach House) has moved pursuant to CPLR 3213 for summary judgment in lieu of complaint against defendants Ethel Beatrice Williams and Zachary Riddick.
BACKGROUND
On May 16, 2013, plaintiff commenced the instant action by filing the instant summary judgment motion in lieu of complaint with the Kings County Clerk's Office. The action is to domesticate and enforce and unsatisfied money judgment which Beach House obtained against [*2]the defendants by default in the State of Florida. The statement of claim and petition from the action commenced in Florida alleges that a default judgment was obtained in the State of Florida for defendants alleged failure to pay maintenance fees and club expenses as required by a time share agreement. On June 8, 2012, the Sixteenth Judicial Circuit in Monroe County, State of Florida issued a final judgment on default in the amount of $4,191.52.
MOTION PAPERS
Beach House's motion consists of the summons, the notice of motion for summary judgment in lieu of complaint, an affirmation of its counsel and an affidavit of service of the instant motion papers. The affirmation of its counsel references three annexed exhibits labeled A through C. Exhibit A contains three documents described as a statement of claim, a petition and a Monroe County Civil Case Information sheet. Exhibit B contains copies of affidavits of service of a summons to appear at a pre-trial conference for a case pending in the County of Monroe, State of Florida. Exhibit C is described as a default judgment entered in the State of Florida against the defendants.
LAW AND APPLICATION
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 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 [*3]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.
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 [NY Sup 2006]; citing Flushing Nat. Bank v Brightside Mfg. Inc., 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 [NY Sup 2006]).
CPLR 3213 provides, "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." 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, New York Civil Practice 4th edition § 291).
If the defendant is a natural person who is served pursuant to CPLR 308(2) the minimum amount of time the between service of the summons and motion papers and the return date is forty days. CPLR 320(a) gives a defendant served in this manner thirty days from completion of service to appear. Service is complete ten days after the affidavit of service is filed with the county clerk.
Beach House submitted two affidavits of service of the instant motion papers and request for judicial intervention. Each affidavit contained sworn allegations of fact attesting to delivery, by one licensed process server, and mailing, by another process server, as follows: On May 20, 2013, Silvana Merced personally delivered two copies of the instant motion papers and a request for judicial intervention (one for each defendant) to Christine Smith, the co-tenant of the defendants, to a specific address in Kings County. On the following day, Debbie Cruz, a different process server, averred that the same set of papers were sent by first class mail addressed to each of the defendants at the exact same address that delivery was made to the co-tenant. Debbie Cruz stated that the address of mailing was "the usual place of abode, last known residence of the defendant(s)"
To successfully complete service pursuant to CPLR 308(2) Beach House was required to file the affidavits of service by no later than twenty days of either delivery or mailing, whichever was effected later. In this case the filing had to occur by no later than June 11, 2012, twenty days after May 21, 2011, the mailing date. The annexed affidavits of service did not contain a Kings County Clerk's office stamp or otherwise demonstrate that the affidavit of service had been filed with the clerk of the court.
It is noted that Beach House made the instant motion returnable on July 10, 2013 and directed the defendants to serve their answering papers in hand at least five days before the return date. Applying Beach House's specific directions to the defendants, the defendants were directed to serve their answer papers before service of the motion was completed. [*4]
Therefore, Beach House did not give the defendants the statutorily required time to appear and respond to the motion. A failure to give the defendants 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 CPLR 3213, see also Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR 3213:9. Methods of Service; see also Mashantucket Pequot Gaming Enterprise v Lin, 27 Misc 3d 216 [NY Sup Ct, Kings County; Jan. 20, 2010]). Beach House'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.
Enter Forthwith:
J.S.C.
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