Atlantic Vine Co. v Battery Buyers, Inc.

[*1] Atlantic Vine Co. v Battery Buyers, Inc. 2020 NY Slip Op 51411(U) Decided on September 30, 2020 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 30, 2020
Supreme Court, Kings County

The Atlantic Vine Company, Plaintiff,

against

Battery Buyers, Inc. A/K/A My Battery Recyclers, Defendant.



505976/2020



Attorney for Plaintiff

David Michael Engelhardt, Esq.

Engelhardt Law

50 Pine Street No.7s

New York, NY 10005
Francois A. Rivera, J.

By summons and notice of motion filed on March 10, 2020, under motion sequence number one, plaintiff the Atlantic Vine Company (hereinafter Atlantic or plaintiff) has moved pursuant to CPLR 3213 for summary judgment in lieu of complaint against defendants Battery Buyers, Inc. a/k/a My Battery Recyclers (hereinafter Battery). The instant motion is unopposed.

BACKGROUND

On March 10, 2020, plaintiff commenced the instant action by electronically filing a summons, a notice of motion for summary judgment in lieu of complaint and a Request for Judicial Intervention (RJI) (hereinafter collectively the commencement papers) with the Kings County Clerk's Office.

The plaintiff commenced this action by motion for summary judgment in lieu of complaint pursuant to CPLR 3213 against Battery seeking to recover the sum of $145,771.00. The plaintiff alleges that Battery owes the money to it in connection with four promissory notes (hereinafter the agreements) between the parties. According to the plaintiff, Battery failed to make the agreed-upon monthly payments. On May 29, 2020, Atlantic filed an amended notice of motion.

LAW AND APPLICATION

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 [*2]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.

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 2006], citing Flushing Nat. Bank v Brightside Mfg. Inc., 59 Misc 2d 108 [Sup Ct 1969]).

As with a plenary action, jurisdiction is obtained over a corporate defendant by serving the corporate defendant with the summons, notice of motion and supporting papers in a method prescribed in the Civil Procedure Law and Rules or Business Corporation Law.

According to the affidavit of service of plaintiff's process server, two copies of the commencement papers were delivered and left with Sue Zouky, the Business Document Specialist and agent for service designated by Battery pursuant Business Corporation Law § 306 (a).

Business Corporation Law § 305 (a) pertains to a registered agent for service of process and provides as follows:

In addition to such designation of the secretary of state, every domestic corporation or authorized foreign corporation may designate a registered agent in this state upon whom process against such corporation may be served. The agent shall be a natural person who is a resident of or has a business address in this state or a domestic corporation or foreign corporation of any type or kind formed, or authorized to do business in this state, under this chapter or under any other statute of this state.

Business Corporation Law § 306 (a) provides that service of process on a registered agent may be made in the manner provided by law for the service of a summons, as if the registered agent was a defendant. Business Corporation Law § 306 (a) is but one of many methods of service for effectuating personal jurisdiction on a corporate defendant. For example, CPLR 311 provides for personal service upon any domestic or foreign corporation by service on an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service.

The burden of proving that personal jurisdiction was acquired over a defendant rests with the plaintiff (Nationstar Mortg., LLC v Einhorn, 185 AD3d 945 [2nd Dept 2020], citing Wells Fargo Bank, N.A. v Decesare, 154 AD3d 717, 717 [2nd Dept 2017]).

An internet search of the New York State Department of State filing for Battery, however, reveals that they do not have a registered agent for service. The apparent discrepancy in the affidavit of plaintiff's process server casts doubt on the Court's personal jurisdiction over the defendant. Accordingly, the plaintiff is directed to file with the Kings County Clerk's office on or before November 6, 2020, an affidavit, affirmation, or other evidentiary submission which clears up the discrepancy. In the meantime, the motion is adjourned until November 19, 2020.

The foregoing constitutes the decision and order of this Court.

Dated: September 30, 2020

HONORABLE FRANCOIS A. RIVERA

J.S.C.