Court Denies Motion For Summary Judgment In Lieu Of Complaint And Dismisses Action Because Return Date Did Not Give Defendant His Full Time To Appear

Posted: August 21, 2026 / Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner / Categories Court Rules/Procedures, Summary Judgment, Commercial

Court Denies Motion For Summary Judgment In Lieu Of Complaint And Dismisses Action Because Return Date Did Not Give Defendant His Full Time To Appear

On August 6, 2026, in Gonzalez v. Marte, Index No. 63818/2026, Justice Gretchen Walsh of the Westchester County Commercial Division denied plaintiff’s motion for summary judgment in lieu of complaint and dismissed the action without prejudice. Plaintiff alleged that defendant had failed to pay the balance due on a $530,000 promissory note given in connection with the sale of plaintiff’s shares in a restaurant corporation. Defendant never appeared or opposed the motion. The Court held that the motion had nonetheless been short-served, and explained:

CPLR 3213 requires that Plaintiff set a “minimum time that [Plaintiff’s] motion shall be noticed to be heard . . . as provided by subdivision (a) of rule 320 for making an appearance, depending upon the method of service.” As Plaintiff’s process server effectuated service under CPLR 308(2) by serving a person of suitable age and discretion at Defendant’s actual place of business, CPLR 320(a) requires that Defendant make an appearance “within thirty days after service is complete.” Service is marked complete 10 days following the filing of the affidavit of service, thus, Plaintiff must have provided a minimum time for Defendant to make an appearance of at least 40 days from May 28, 2026 or, in other words, set a minimum return date or deadline for filing answering papers for July 7, 2026.

In this case, Plaintiff set the return date for May 29, 2026, and required service of answering papers or any notices of cross-motion from Defendant 10 days prior to that date. Since Plaintiff requested service of answering papers 10 days prior to May 29, 2026, or by May 19, 2026, Plaintiff short-served his motion for summary judgment in lieu of complaint by at least 49 days. . . . Therefore, because Plaintiff short-served his motion for summary judgment in lieu of complaint, the Court lacks personal jurisdiction over Defendant. (citations and footnote omitted).

The attorneys at Schlam Stone & Dolan LLP frequently litigate motions for summary judgment in lieu of complaint. Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning such issues.

To read more about the notice a defendant must receive on a motion for summary judgment in lieu of complaint, see Schlam Stone & Dolan’s related Commercial Division Blog posts on a decision holding that noticing a CPLR 3213 motion to be heard before the defendants’ time to appear had elapsed was a clear and fatal jurisdictional defect and a decision dismissing an action where the notice of motion left the defendant’s time to serve answering papers ambiguous.