CPLR 3213, which is a procedural device permitting a plaintiff, under certain circumstances, to obtain summary relief at the very beginning of a lawsuit, provides, in pertinent part:
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….
This BLOG previously has addressed issues related to CPLR 3213. See [here], [here], [here], [here], [here], [here], [here], [here], [here], [here], [here], [here] and [here].
The First Department noted that CPLR 3213 “affords a speedy and efficient remedy to secure a judgment in certain cases where service of formal papers would be unnecessary for the expeditious resolution of the dispute between the parties.” Technical Tape, Inc. v. Spray Tuck, Inc., 131 A.D.2d 404, 405 (1987).
As evidenced by our prior articles, much litigation surrounding CPLR 3213 involves the question of what constitutes “an instrument for the payment of money only.” As previously noted, lawsuits involving promissory notes, guaranties and settlement agreements may be amenable to summary disposition pursuant to CPLR 3213, while merchant cash agreements may not.
The purpose of today’s article, however, is to address a more basic aspect of CPLR 3213 — the establishment of a return date for the motion, which is critical because a “short” return date (i.e., a return date that predates the time within which the defendant would have to appear in the action pursuant to CPLR 320(a)) could result in the dismissal of the action. This BLOG previously discussed this issue. [Here.] As set forth in CPLR 3213, the minimum time for the return date for a motion for summary judgment in lieu of complaint is coincident with the defendant’s time to appear as set forth in CPLR 320(a), which provides:
The 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. An appearance shall be made within twenty days after service of the summons, except that if the summons was served on the defendant by delivering it to an official of the state authorized to receive service in his behalf or if it was served pursuant to section 303, subdivision two, three, four or five of section 308, or sections 313, 314 or 315, the appearance shall be made within thirty days after service is complete. If the complaint is not served with the summons, the time to appear may be extended as provided in subdivision (b) of section 3012.
A “short” return date could be consequential. In Bhanti v. Jha, 140 A.D.3d 685 (2nd Dep’t 2016), the Court held that making the motion returnable “prior to the expiration of the time within which the defendant had to appear in the action … was a fatal jurisdictional defect.” Id. at 686 (citation omitted).
In Blue Lagoon, LLC v. Reisman, 214 A.D.3d 938 (2nd Dep’t 2023), “under the particular circumstances” presented, the Court reversed the motion court’s refusal to vacate a default judgment pursuant to CPLR 5015(a) due to “short” service of a motion for summary judgment in lieu of complaint. Id. at 942. There, inter alia, the defendants did not dispute receiving the original summons and notice of motion, admitted they were on notice of the motion by averring that “they had continuously checked the eCourts website” and were aware that the motion was adjourned on numerous occasions. Further, the plaintiff filed an amended notice of motion; service of which was not denied by the defendants.
Similarly, the Third Department, in Capolino v. Goren, 155 A.D.3d 1414 (2017), based on the “peculiar circumstances” of the case and the “absence of prejudice flowing from plaintiff’s missteps”, the Court looked beyond the plaintiff’s “short” return date. In Capolino, the defendants were improperly served with process by mail, but the mailing put the defendants “on notice of the pending motion for summary judgment in lieu of complaint,” which was responded to with a cross-motion. Id. at 1415 -16. A notice of motion was subsequently served, and plaintiff advised he would consent to any requested adjournments. Id. Thus, while recognizing Bhanti’s holding that a wholesale failure to timely serve defendant with the initiatory papers constitutes “a fatal jurisdictional defect,” the defendant in Capolino was not prejudiced and “was placed on notice, then submitted a cross motion that raised various objections and included substantive opposition before being properly served.” Accordingly, the Capolino Court “was persuaded that the untimeliness of the proper service could be and rightly was overlooked.” Id. at 416.
On July 23, 2024, the Supreme Court, New York County (Chan, J.), decided SD Stability SDIRA, LLC v. Maxben Holding, LLC. The simplified facts of SS Stability follow. The plaintiffs in SS Stability loaned money to the defendant, the repayment obligation for which was evidenced by promissory notes. Upon the defendant’s default, the plaintiffs commenced their action by the filing of a Summons with Notice. The plaintiffs subsequently filed an “Amended Notice of Motion for Summary Judgment In Lieu of Complaint” (the “Notice”). The Notice was filed on March 19, 2024, was dated March 20, 2024, and set a return date of April 9, 2024. The motion related papers were personally served on March 21, 2024, only 19 days prior to the April 9, 2024, return date of the Notice.
The defendant argued that the motion must be denied due to “short” notice. The motion court noted that, due to the method of service, the defendants had 20 days to appear. Relying on Bhanti, the motion court held that the plaintiff’s “clear and fatal jurisdictional defect plainly warrants dismissal for lack of jurisdiction.” In so doing, the motion court rebuffed the defendant’s argument that Blue Lagoon superseded Bhanti, and, instead, distinguished Blue Lagoon’s facts from those of Bhanti (as discussed herein). Absent the special facts of Blue Lagoon “there remains only plaintiffs’ defective notice”. The motion court also rejected the plaintiffs’ argument that the defendant appeared and, therefore, was not prejudiced because it was able to oppose the motion. The motion court found that, unlike the cases relied upon by the plaintiff, the defendant did not oppose the motion “on the merits” and, instead, limited its opposition to jurisdictional issues. Thus, the motion court stated:
Here, the parties did not stipulate to nor did defendant seek any extensions or adjournments, so this [sic] not an issue that needs addressing. While it is true that defendant opposed this motion; defendant’s only challenge goes to the lack of personal jurisdiction. Significantly, defendant did not oppose the motion on the merits. What remains is a defective notice of motion that did not give defendant sufficient time pursuant to CPLR 3213, which is a fatal jurisdictional defect requiring dismissal. The defective notice of the motion for summary judgment in lieu of complaint mandates dismissal of the motion. [Citations omitted.]
TAKEAWAY
Courts deciding issues related to proper return dates on CPLR 3213 notices of motion frequently depend on fact sensitive issues when determining whether a defendant had sufficient time to appear. Practitioners should be mindful of such issues and provide sufficient time in the notice of motion to account for problems with service of process, the method of service and/or any other contingencies. When such factors are considered, and a return date is set sufficiently far in advance, query whether it may be easier to file and serve a complaint, permit the defendant to answer and promptly move for summary judgment pursuant to CPLR 3212.
