Opinion
526709/2019
03-09-2020
CENTERSTATE BANK, successor by Merger with CharterBank, successor by Merger with Community Bank of the South, Plaintiff, v. EDISON-COMPASS, LLC, Joseph Ostreicher, Susan Ostreicher, and George Gross, Defendants.
Attorneys for Plaintiffs: Akerman LLP 666 Fifth Avenue, 20th FloorNew York, NY 10103
Attorneys for Plaintiffs: Akerman LLP 666 Fifth Avenue, 20th FloorNew York, NY 10103
By notice of motion filed on December 9, 2019, under motion sequence number one, Centerstate Bank, successor by merger with Charterbank, successor by merger with Community Bank of the South (hereinafter Centerstate) has moved pursuant to CPLR 3213 for summary judgment in lieu of complaint against defendants Edison-Compass, LLC, Joseph Ostreicher, Susan Ostreicher, and George Gross. The instant motion is unopposed.
BACKGROUND
On December 9, 2019, 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 (hereinafter KCCO). This action is to domesticate and enforce an unsatisfied money judgment which Centerstate obtained against the defendants by default in the Georgia State Court of Cobbs County in civil action number 19-A-2071. By order dated November 15, 2019, Judge David P. Darden of the Georgia State Court of Cobb County granted Centerstate's application for a default judgment against defendants Edison-Compass, LLC, Joseph Ostreicher, Susan Ostreicher, and George Gross based on an indebtedness owed pursuant to a Credit Agreement Loan, a promissory note and commercial guarantees (hereinafter the Georgia Default Order). The Court found that the defendants were jointly and severally liable and set forth the specific amounts due and owing consisting of principal, accrued interest and its effective date, late fees, statutory attorney's fees, and the future interest rate applicable to each count asserted against the defendants.
MOTION PAPERS
Centerstate's motion consists of the summons, the notice of motion for summary judgment in lieu of complaint, an RJI, an affirmation of its counsel, a memorandum of law in support, and several affidavits of service of the instant motion papers. The affirmation of its counsel references two annexed exhibits labeled 1 and 2. Exhibit 1 is the summons and complaint of the action commenced by Centerstate against Edison-Compass, LLC, Joseph Ostreicher, Susan Ostreicher, and George Gross in the Georgia State Court of Cobb County. Exhibit 2 is the Georgia Default Order.
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 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 [NY Sup 2006] citing Flushing Nat. Bank v. Brightside Mfg. Inc. , 59 Misc 2d 108 [Sup Ct., Queens County 1969] ).
As with a plenary action, jurisdiction is obtained over an individual defendant by serving the defendant with the summons, notice of motion and supporting papers in a method prescribed in CPLR Article 3. The minimum amount of time the plaintiff must give the defendant to oppose the motion for summary judgment in lieu of complaint is determined by the amount of time the defendant would have to appear in the action if the defendant had been served with a summons and complaint or summons with notice ( Goldstein v. Saltzman , 13 Misc 3d 1023 [NY Sup 2006] ).
CPLR 3213 provides, "[t]he 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." Thus, in a 3213 motion, the minimum amount of time the plaintiff must give the defendant to appear and oppose the motion is dependent upon the date and method of service, (see generally Siegel, NY Prac. § 291 [6th ed.] ).
If the defendant is a natural person who is served pursuant to CPLR 308 (2) or (4) the minimum amount of time the between service of the summons and motion papers and the return date is forty days. CPLR 320 (a) gives a defendant served in this manner thirty days from completion of service to appear. Service is complete ten days after the affidavit of service is filed with the county clerk.
CPLR 308 (4) permits service by "affix and mail" only where personal delivery or delivery to a person of suitable age and discretion "cannot be made with due diligence" (see Sinay v. Schwartzman , 148 AD3d 1068, 1070 [2nd Dept 2017] ). The requirement of due diligence must be strictly observed because there is a reduced likelihood that a defendant will actually receive the summons when it is served pursuant to CPLR 308 (4) ( Coley v. Gonzalez , 170 AD3d 1107, 1108 [2nd Dept 2019] citing Serraro v. Staropoli , 94 AD3d 1083, 1084 [2nd Dept. 2012] ).
Service upon George Gross
Marwan Elgizawy, plaintiff's licensed process server (hereinafter Elgizawy) alleged service of the commencement papers upon George Gross as follows. On December 13, 2019 at 7:57 pm, he attempted unsuccessfully to serve the defendant at a specific address in Brooklyn, New York which he described as the defendant's residence. He made another unsuccessful attempted on December 16, 2019 at 9:29 pm and he made a final attempt on December 17, 2019 at 5:25 pm. He then affixed the commencement papers to the front door of the residence. On December 17, 2019, he mailed the commencement papers to George Gross addressed to the same address where the attempts of service had been made. On December 30, 2019, Elgazawy filed his affidavit of service with the KCCO.
Assuming for the sake of argument that the due diligence showing required for using CPLR 308 (4) has been met the following analysis applies. In accordance with CPLR 308 (4) Elgizawy completed service upon George Gross on January 9, 2020, ten days after filing the affidavit of service. In accordance with CPLR 320 (a), Gross had until February 8, 2020, that is thirty days after January 9, 2020, to answer the CPLR 3213 motion. Centerstate, however, made the instant motion returnable on February 10, 2020 and directed Gross to serve his answering papers by January 31, 2020.
Therefore, Centerstate did not give George Gross the statutorily required time to appear and respond to the motion. A failure to give a defendant the statutorily mandated time to appear and answer a motion for summary judgment in lieu of complaint compels not only a denial of the motion but also a dismissal of the action (see CPLR 3213 ; see also , McKinney's Cons. Laws of NY, Book 7B, CPLR 3213:9; see also Mashantucket Pequot Gaming Enterprise v. Lin, 27 Misc 3d 216, 222 [Sup Ct 2010] ). Centerstate's motion for summary judgment in lieu of complaint is denied and the action as asserted against George Gross is dismissed.
Service upon Edison-Compass, LLC, Joseph Ostreicher and Susan Ostreicher
The service of the commencement papers on the remaining defendants did not suffer from the same deficiencies that existed in the service upon George Gross. On December 16, 2019, Daniel Knight, Centerstate's licensed process server (hereinafter Knight), served the commencement papers on Edison-Compass, LLC by personally delivering them to Joseph Ostreicher, its managing agent. Service by this method complied with CPLR 311 (a) (1).
On December 13, 2019, Knight served the commencement papers on Susan Ostreicher by personally delivering them to Joseph Ostreicher, her husband, at their residence. Thereafter, Knight mailed the commencement papers addressed to Susan Ostreicher to the same address that the personal delivery was made. Knight then filed his affidavit of service with the KCCO on December 18, 2019. This method of service complied with CPLR 308 (2) and gave Susan Ostreicher sufficient time to answer the CPLR 3213 motion.
On December 13, 2019 at 3:05 a.m., Knight served the commencement papers on Joseph Ostreicher by personally delivering them to him at his residence. Knight then filed his affidavit of service with the KCCO on December 18, 2019. This method of service complied with CPLR 308 (1) and gave Joseph Ostreicher sufficient time to answer the CPLR 3213 motion.
The full faith and credit clause of the United States Constitution ( U.S. Const., art. IV, § 1 ) requires a judgment of one state court to have the same credit, validity, and effect in every other court of the United States, which it had in the state in which it was pronounced ( Cassis v. Windswept Properties, Inc. , 176 AD3d 914, 915 [2nd Dept 2019] citing TCA Global Credit Master Fund, L.P. v. Puresafe Water Sys., Inc. , 151 AD3d 1098, 1099 [2nd Dept 2017] ).
A default judgment of a sister State can be accorded full faith and credit, and review by the courts of this State is limited to determining whether the rendering court had jurisdiction, an inquiry which includes due process considerations ( TCA Global Credit Master Fund, L.P. , 151 AD3d at 1099 citing Fiore v. Oakwood Plaza Shopping Ctr. , 78 NY2d 572, 577 [1991] ). However, such an inquiry into the rendering court's personal jurisdiction over a defendant should only be made where the defendant raises the issue of lack of personal jurisdiction of the rendering court ( TCA Global Credit Master Fund, L.P. , 151 AD3d at 1099 citing Ho v. McCarthy , 90 AD3d 710 [2nd Dept 2011] ) Here, there was no jurisdictional challenge by the defendants. Accordingly, Centerstate's motion for summary judgment in lieu of complaint against defendants Edison-Compass, LLC, Susan Ostreicher, and Joseph Ostreicher should be granted. Centerstate should submit a proposed judgment on or before March 30, 2020.
CONCLUSION
The motion by Centerstate Bank, successor by merger with Charterbank, successor by merger with Community Bank of the South pursuant to CPLR 3213 for summary judgment in lieu of complaint against defendant George Gross is denied.
The motion by Centerstate Bank, successor by merger with Charterbank, successor by merger with Community Bank of the South (hereinafter Centerstate) pursuant to CPLR 3213 for summary judgment in lieu of complaint against defendants Edison-Compass, LLC, Joseph Ostreicher, Susan Ostreicher is granted. The movant is directed to submit a proposed judgment on or before March 30, 2020.
The foregoing constitutes the decision and order of this Court.