Commercial Division Blog

Posted: April 28, 2015 / Categories Commercial, Motion to Dismiss; Motion for Judgment on the Pleadings, Service of Process

Defects in Summons Require Dismissal of Action Brought By Motion For Summary Judgment In Lieu of Complaint

On April 17, 2015, Justice Scarpulla of the New York County Commercial Division issued a decision in Clinton Capital Corp. v. 635 Realty Corp., 2015 NY Slip Op 30614(U), dismissing an action brought by motion for summary judgment in lieu of complaint based on defects in the summons and service of process.

The plaintiff in Clinton Capital is a judgment creditor who brought an action under CPLR 5014(1) for a "renewal judgment" to extend a real property lien resulting from the original judgment, which would otherwise expire after 10 years. The plaintiff commenced the action by way of a motion for summary judgment in lieu of complaint under CPLR 3213, "a hybrid procedure incorporating certain elements of an action and certain elements of motion practice." As in a plenary action, in order for the court to obtain personal jurisdiction over the defendant, the plaintiff must serve the plaintiff the summons, and (instead of a complaint) a notice of motion for summary judgment and supporting motion papers.

Where it is available – i.e., in "an action [] based upon an instrument for the payment of money only or upon any judgment" – a motion for summary judgment in lieu of complaint can provide an accelerated path for the plaintiff. However, as Clinton Capital learned in this case, CPLR 3213 can also create procedural pitfalls for the plaintiff. The difficulty arises from the fact that the notice of motion must set a return date no earlier than the time permitted under CPLR 320 for making an appearance. And that time period, in turn, depends on the method of service, which the plaintiff may not know at the time the summons and motion in lieu of complaint are filed. If the defendant is served by personal service, then the return date must be no earlier than 20 days after service. If substitute service is used, the time period for the appearance is more complicated: the defendant has 30 days to appear, but the clock does not begin to run until all the service steps are complete. The failure to give the mandated time period for the defendant to appear and answer the motion can have serious consequences, resulting in "not only a denial of the motion but also a dismissal of the action."

In Clinton Capital, the summons contained numerous defects that resulted in the dismissal of the action. First, the Court noted that the summons "creates an ambiguity as to the time required for [the defendant] Rahbar to answer." The Court explained:

The summons states that Rahbar is "required to submit to plaintiffs' attorney answering papers on this motion within the time provided in the notice of motion annexed [thereto]." The notice of motion is dated August 8, 2014, and states that "[u]pon the summons, dated August 8, 2014 . . . all answering papers shall be served on the undersigned on or before the 10th day after personal delivery of the summons to you." (Emphasis added).

Clinton did not personally deliver the summons and notice of motion to Rahbar. Rather, Clinton utilized substituted service under CPLR 308(2). Applying Clinton's specific direction to Rahbar, the time to answer is measured from the date of personal delivery to Rahbar, and not the return date of the motion. Because Clinton did not personally deliver the papers to Rahbar, the direction in the notice of motion creates an ambiguity as to when Rahbar must serve his answer, i.e., whether he must wait for personal delivery in order to do so. Therefore, Clinton has created a patent ambiguity, rendering its action jurisdictionally defective, and requiring both denial of the motion, and dismissal of the action.

Other facial defects in the summons included failure to indicate the Index Number or the date of filing, and an improper venue designation. In addition to these problems, the affidavits of service did not establish that the summons and motion papers were properly served. For all these reasons, the court denied the motion for summary judgment in lieu of complaint and dismissed the action without prejudice. The lesson here is that procedure can be as important to your case as the substance of the claims. No matter how strong your case, it won’t get off the ground if you don't file it, and serve the papers properly.