Yellen v Berg

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Yellen v Berg 2018 NY Slip Op 32512(U) October 1, 2018 Supreme Court, New York County Docket Number: 155123/17 Judge: Barbara Jaffe Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 10/04/2018 10:08 AM NYSCEF DOC. NO. 34 INDEX NO. 155123/2017 RECEIVED NYSCEF: 10/04/2018 SUPREME COURT OF THE STATE OF NEW YORK. NEW YORK COUNTY PRESENT: PART HON. BARBARA JAFFE Justice 12 -- ---------~-------------------------------------------------------------------------X RICHARD L. YELLEN and RICHARD L. YELLEN & ASSOCIATES, LLP, INDEX NO. 155123/17 MOTION DATE Plaintiffs, MOTION SEQ. NO. -v- JAY H. BERG & CORNICELLO, TENDLER & BAUMEL-CORNICELLO, LLP, DECISION AND ORDER Defendants. -----------------------------------------------------------------------------------X Defendants move pursuant to CPLR 321 l(a)(8) and (b) for an order dismissing the action. Plaintiffs oppose and, by notice of cross motion, move pursuant to CPLR 306-b for an order extending their time to serve the summons with notice on defendants. Defendants oppose the cross motion. On June 5, 2017, plaintiffs filed a summons with notice. (NYSCEF 1). On June 8, 2017, defendants demanded a complaint pursuant to CPLR 3012(b) through the court's e-filing system and by sending it by first-class mail. (NYSCEF 2). On June 28, 2017, plaintiffs e-filed a complaint. (NYSCEF 3 ). Pursuant to CPLR 306-b, service of a summons with notice must be made within 120 days after the action is commenced. Pursuant to CPLR 30 l 2(b), if a complaint is not served with a summons, the defendant may serve a written demand for one and must do so within the time provided in CPLR 320(a) for an appearance. Service of the complaint must be made within 20 Page 1of4 1 of 4 [*FILED: 2] NEW YORK COUNTY CLERK 10/04/2018 10:08 AM NYSCEF DOC. NO. 34 INDEX NO. 155123/2017 RECEIVED NYSCEF: 10/04/2018 days after service of the demand. A defendant appears by serving an answer or a notice of appearance or by making a motion which has the effect of extending the time to answer, and such appearance must be made within 20 days after service of the pleadings. (CPLR 320[a]). Plaintiffs concede that they improperly served the summons with notice on defendants by electronically filing it with the court. They argue, however, that defendants' service of a demand for a complaint before they were served with the summons with notice and before the expiration of plaintiffs' time to serve it is also improper, and that defendants appeared in the action and consented toe-filing bye-filing their demand for a complaint. Moreover, after the complaint was served on them bye-filing within the required 20-day period, defendants retained it without • objection, and that, therefore, defendants waived any defect in plaintiffs' failure to serve the summons with notice on them. (NYSCEF 20). Defendants deny having consented to thee-filing of the complaint and allege without dispute that neither the summons with notice nor the complaint were ever personally served on ·them. (NYSCEF 27). A party's service of a demand for a complaint before it is served with the summons with notice is premature and a nullity, and thus does not affect the plaintiff's time to serve a complaint pursuant to CPLR 3012(b). (Wimbledon Fin. Master Fund, Ltd v Weston Cap. Mgt. LLC, 150 AD3d427 [l5 1 Dept2017];RyanvHighRockDev., LLC, 124AD3d 751 [2dDept2015]). While plaintiffs timely served their complaint despite defendants' premature service of a demand for it, they never served defendants with the summons with notice within 120 days of its e-filing. Rather, they served defendants with their complaint, and there appears to be no case law, and none cited by the parties, that addresses the consequences of filing a summons with . notice, of serving a demand for the complaint before service of the summons with notice, and the 2 of 4 Paue 2 of 4 [*FILED: 3] NEW YORK COUNTY CLERK 10/04/2018 10:08 AM NYSCEF DOC. NO. 34 INDEX NO. 155123/2017 RECEIVED NYSCEF: 10/04/2018 --service of a complaint before or instead of serving a summons with notice. No authority exists, therefore, for defendants' argument that plaintiffs' failure to serve the summons with notice in these circumstances is fatal to this action. Moreover, plaintiffs e-filed the complaint on June 28, 2017, and no further action was taken by either side until defendants filed their motion to dismiss the complaint on April 6, 2018, whereby defendants retained the complaint without objection for approximately I 0 months. Having done so', they waive any objection to its alleged improper service. (See Haygood v Rochester Genl. Hosp., 249 AD2d 943 [4th Dept 1998] [although plaintiff did not serve complaint within 20 days of defendant's demand for it, he mailed copy of it to defendant's attorney who retained it for one month before moving to dismiss, thereby waiving objection to service]; see also Chin v Yard, 40 AD3d 590 [2d Dept 2007] [defendant waived late service of complaint by accepting and retaining it, without objection, before moving to dismiss complaint approximately eight months later]; Chiulli v Coyne, 210 AD2d 450 [2d Dept 1994] [although plaintiff's service of amended complaint without leave of court was nullity, defendants waived objection thereto by failing to reject complaint]). In any event, by e-filing their demand for a complaint, defendants are reasonably deemed to have consented toe-filing, and thus service on them of the complaint bye-filing was not only proper but required by the court's rules one-filing as set forth in 22 NYCRR 202.5-bb. (See Batra v Elec. Land Svces., Inc., 41 Misc 3d 1211[A],2013 NY Slip Op 51544[U] [Sup Ct, Westchester County 2013], affd on other grounds 136 AD3d 723 [2d Dept 2016] [when defendants appeared in case bye-filing notice of appearance or demand for complaint in response to summons with notice, their attorneys thus consented toe-filing, permitting service of complaint to be made on them bye-filing]). Similarly, in Obs(feld v Thermo Niton Analyzers 3 of 4 PaQe 3of4 [*FILED: 4] NEW YORK COUNTY CLERK 10/04/2018 10:08 AM NYSCEF DOC. NO. 34 INDEX NO. 155123/2017 RECEIVED NYSCEF: 10/04/2018 LLC, the defendants e-filed a demand for a complaint and the plaintiffs then served the complaint on them bye-filing. Defendants moved to dismiss, arguing that as they had not yet appeared in the action, service on them of the complaint bye-filing only was improper. The court denied the motion to dismiss, finding that while defendants' e-filing of a demand for a complaint did not constitute an appearance in the action, the defendants consented toe-filing and therefore, pursuant to 22 NYCRR 202.5-bb(2), service of papers was required to be made on defendants by electronic filing. (27 Misc 3d 1209[A], 2010 NY Slip Op 50633[U] [Sup Ct, Kings County 2010]). The complaint is thus deemed to have been served on defendants by thee-filing of the complaint; no further service is required. In light of this result, I do not address defendants' arguments as to the merit of the complaint. Accordingly, it is hereby ORDERED, that defendants' motion to dismiss is denied; it is further ORDERED, that plaintiffs' cross motion for an extension of time to serve the complaint on defendants is denied as academic; it is further ORDERED, that defendants file and serve an answer to the complaint within 30 days of the date of this order; and it is further ORDERED, that the parties appear for a preliminary conference on December 9, 2018 at 2:15 pm at 60 Centre Street, Room 341, New York, New York. 10/1/2018 DATE CHECK ONE: CASE DISPOSED Q GRANTED APPLICATION: CHECK IF APPROPRIATE: D DENIED SETTLE ORDER D DO NOT POST 4 of 4 Page 4of4 REFERENCE

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